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*P* 



A MEMOIR 



OF 



THOMAS CHITTEIDEI, 



THE FIRST GOVERNOR OF VERMONT; 



WITH A HISTORY OF THE CONSTITUTION 
DURING HIS ADMINISTRATION. 



By DANIEL CHIPMAN, LL. D. 



MIDDLEBURT : J 
PRINTED FOR THE AUTHOR. 

1849. 



- sa 






Entered according to Act of Congress, in the year 1849, 

by Daniel Chipman, in the office of the Clerk of the 

District Court for the District of Vermont. 



.»• 



CONTENTS . 



Page* 
. V. 



Preface, 

CHAPTER I. 

His Birtli —His ScltleHieTitin Salisbury.--The Governors 
of New" York and New Hampshire both make grants 
of lands in the territory bow included m the State ot 
Vermont --Col. Chittenden removes to the iSew Hamp- 
shire Grants.— Driven from his farm m 1676 9 

CHAPTER 11. 

The first Constitution of Vermont -a copy of the first 
Constittition of Pennsylvania, with some alterations ^^ 

and additions 

CHAPTER III. 

Congress recommends to the several States to form gov- 
ernments for themselves.-Pormatioii of he first Con= 
stitutions of New Hampshire and Perinsylvania.-The 
first Constitutions of the different States wied as 
the'r Colonial Governfiients had yaried,--Extiacts 
from fhe charter of Gov. Penn.-History of the first 
Constitution of Pennsylvania and the formation of a 
new Constitution 

CHAPTER IV. 

The first section in the Bill of Rights in the Constitution 
of Pennsylvania so amended as to abolish siavery.— 
Act to prevent the transportation of negroes and rau- 
lattoes out of the State.-Second section m the Bill of 
Rights amended.-MiHisterial acts.-Eifteenth section 

amended • • 

CHAPTER V. 

Ratification of the first Constitution of Vermont.-Actg 
of the Legislature making the Constitution a law of 
the State.-Extracts from Vt. State Papers.-Addrcss 
of the Council of Safety to the people -"^ 



5t 



81 



Vlll. CONTENTS. 

CHAPTER VI. 

The last section of the Constitution, providing for a CoutJ- 
cil of Censors, originated in a want of confidence in 
the Government Avhich they had instituted.— Expen- 
sive mode of amending the Constitution.— Mode of a- 
mending the Constitution in Kentucky and Missouri. 
Extract from Chipman's Principles of 'Government. . . 114 

CHAPTER Vn. 

Little regard paid to the Constitution in the first Sep- 
tenary.— Address of the Council of Censors to the peo- 
ple, at the close of their deliberations 142 

CHAPTER VIII. 

Amendment of the 4th section in the Bill of Rights, and 
of the 16th section in the Frame of Government.— The 
Assembly denied the right of the Council to originate 
bills.— They pass suspendsd bills without sending them 
to the Governor and Council.— Vermont acceded to 
the Union.— Council of Censors elected at the end of 
the second Septenary.— They proposed amendments 
and called a Convention.— Resignation and death of 
Gov. Chittenden 171 

CHAPTER IX, 

Origin of Civil .Government.— The powers of Govern- 
ment necessarily vested in individuals, until the peo- 
ple are capable of Self-Government.— The people of 
the British American Colonies organized the first 
Civil Government founded on the sovereignty of the 
people, the natural government of civilized man, and 
it will be extended through the world 194 



APPENDIX. 

NO. I. 

Note to Page '118 207 

NO. II, .Jt 

Letter of Gov. Chittenden to Gen. Washington 208 

NO. III. 

Representation in the several States 215 






PREFACE. 



# 



The biography of Governor Chittenden is not so full as the 
reader may have expected to find it ; but he will consider that 
his occupalion was that of a farmer, and that although he 
was an enterprising, industrious, economical, and, of course, 
a successful and wealthy farmer, yet as agriculture had not 
during; his life been raised to the rank of a science, or attract- 
ed any public attention, his occupation could afford but lit- " 
tie matter for biography. Had he lived in these days of ag- 
ricultural improvement, he would have been conspicuous a- 
monff those individuals, who have devoted their time and their 
talents to the improvement of agriculture, and would have 
furnished much useful and interesting matter for history and 

biography. 

His government, too, being rather patriarchal than consti- 
tutional, afforded little matter for an extended biography. 
In portraying his public character, therefore, I have been 
compelled to rely principally on the difficult task he had to 
perform, in organizing and administering the government, 
and the manner in vs^hich he performed it ; stating, as far as 
recollection and the traditionary account of those times would 
enable me to do it, the peculiar traits of his character, which 
fitted him to perform it so well. 

Until after the work was copied for the press, the charge of 
criminality against Gov. Chittenden and his compatriots, in 
th'iir secret negotiation with the British authorities in Cana- 



VI. PREFACE. 

da. escaped my notice. This was natuiral, as I knew the 
charge to be unfounded. When I wrote the life of Judge 
Chipman, I noticed the charge, making a concise statement 
of the facts in the case, but afterwards finding that Col. Stone 
had, in his life of Brant, made the charge at length, with a 
detail of the evidence in support of it, I felt it to be my duty 
to insert a refutation of the charge, which occupied a number 
of pages. I cannot think of swelling this work by inserting 
that refutation, but I insert in the Appendix a letter from 
Gov. Chittenden to Gen. Washington, by which the reader 
<will be satisfied that Gov. Chittenden kept Washington in- 
formed of that negotiation during its progr>ess. 

Eijpton, T7., December 17, 1849. 



MEMOIR OF CHITTENDEN, &C. 



CHAPTER I. 



His Birth— His Settlement in Salisbury— The Governors of 
New York and New Hampshire both make grants of lands 
in the territory now included in the State of Vermont- 
Col. Chittenden removes to the New Hampshire Grants- 
Driven from his farm in 1776. 

Thomas Chittenden was born in East Guil- 
ford, in the then Colony of Connecticut, on the 
6th of January, 1730. Of his ancestors, noth- 
ing is known, except that his parents were respect- 
able, but moved in the ordinary walks of life. 
His father was a farmer, and the subject of this 
memoir labored on the farm, being allowed only 
the advantages of a common school education. 

In the 18th year of his age, being too full of 
enterprise and resolution to be confined within the 
narrow circle within which he seemed to be des- 
tined by his education and fortune to move, he en- 
gaged ia a voyage to the West IndieSo In this 

2 



-^ 



10 MEMOIK OF 

enterprise, he was unfortunate. The mother coun- 
try being at war with France, he was captured by 
a French vessel of war, and landed on a West 
India island, without money, and without friends. 
In this condition, he was left to find his way home, 
which, after a series of suiFering and fatigue, he 
accomplished. After this unfortunate voyage, a 
sailor's hfe had no charms for him, and he deter- 
« mined "never again to leave his plough, to go 
ploughing on the deep." He accordingly contin- 
ued on the farm with his father, until the 4th of 
October, 1749. About this time, he married Eliz- 
abein Ivleigs, and soon after removed to SaUsbury, 
in Connecticut. He thus made a Yankee settle- 
ment, married early, and began to move. The first 
settlement in the town, by the English, commenced 
£ibout the year 1738, and the town was organ- 
ized in November, 1741. This northwestern 
part of Connecticut, watered by the Housatonic 
river, and lying west of the Green Mountain 
range, remained a wilderness many years after 
the other parts of the colony had been settled. 
A fear of the Indians had prevented a settlement 
in this quarter, until the population in the older 
p^Tts of the Colony had become somewhat 
crowded, and notwithstanding it was considered 



THOMAS CHITTENDEN. H 

a perilous undertaking to move a family into 
the remote wilderness of Salisbury, yet, there 
were in the older settlements so many men of 
enterprise and resolution, anxiously seeking a 
wider range for their exertions, that the town 
settled rapidly. And as the inhabitants display- 
ed all that energy peculiar to new settlers, re- 
taining their Puritan habits of economy, they 
soon became independent farmers. Coming as 
they did from different parts of New England, 
where customs and habits of thinking somewhat 
different had prevailed, and uniting in the form- 
ation of a new society out of these different ma- 
terials, their minds were invigorated, and they 
naturally obtained a more enlarged and just view 
of men and things. 

During the first half century, there were but 
few men of public education in the town, but 
there were a number of self made, well-educated 
men, who were distinguished as public men in 
the county and in the Colony. 

Judge Church, in his address delivered at the 
centennial anniversary of the organization of the 
town, in November, 1841, remarks: "It is a 
just occasion of pride in any community, that it 
has sent forth from its members to other regions 



12 MEMOIR OF 

men of eminence and usefulness, and perhaps 
the town of Salisbury, retired and obscured as it 
is, has furnished other sections of the confedera- 
cy her full proportion of distinguished men." 
And in designating the individuals of this class, 
"with great propriety, he places Thomas Chitten- 
enden at the head of the list. That the inhabit- 
ants of the town placed him among their first citi- 
zens, is evident from the fact, that he represent- 
ed the town in the Legislature, in the years 
1765, '6Q, '67, '68, '69 and '72. He was also 
Colonel of a regiment of militia, and a Justice 
of the Peace, until he removed from the town. 
This last was, at that time, an office of distinc- 
tion, for, during the whole century, after the or- 
ganization of the town, thirty-five individuals on- 
ly were in the commission of the peace. 

The French province of Canada having been 
ceded to Great Britian by the treaty of 1763, 
all danger from the Indians was removed, and the 
New Hampshire Grants were open for settlement. 
The Governor of New Hampshire, claiming ju- 
risdiction as far west as the present west line of 
Vermont, granted a great number of townships 
'west of Connecticut river. Col. Chittenden and 
some of his sons were grantees in several of 



TUOMAS CHTTTENDEX. I'i 

tliese townships. The Governor of New York 
claimed jurisdiction over the same territory, and 
granted a considerable portion of the same lands, 
treating the New Hampshire grants as utterly 
void. 

The grantees under New Hampshire made 
settlements in many of the townships, on both 
sides of the Green Mountains. In the year 
1764, the King decided the controversy between 
the two Governors, so far as to give jurisdiction 
of the territory in question to New York. 

By this decision, the Governor of New Y'ork 
considered that the grants which had been made 
by the Governor of New Hampshire were null 
and void, and he required the grantees under 
New Hampshire to surrender their charters, and 
take Confirmation charters under New York, on 
payment of granting fees, to a large amount. 

With this requisition the settlers on the east 
side of the Mountain generally complied ; paid 
the granting fees ; took out Confirmation charters ; 
and were quieted in their possessions ; but the 
settlers on the west side of the Mountain called 
a convention, by which it was made penal for any 
one to take a Confirmation charter under New 
York. Actions of ejectment Tvere brought against 



14 . MEMOIR OF" 

the New Hampshire settlers bj the grantees un- 
der New York, before the Courts at Albany, in 
which judgments were rendered in favor of the 
plaintiffB, who took out writs of possession, and at- 
^tempted to execute them ; but in every instance, 
the settlers made forcible and successful resist- 
ance, and remained in possession of their farms. 
This state of things continuing, the settlements 
under New Hampshire, on the west side of the 
Mountain, rapidly increased, and the settlements 
under the Confirmation charters, on the east side 
of the Mountain, increased as rapidly. Great 
numbers emigrated from Salisbury to the New 
Hampshire Grants on the west side of the Moun- 
^ tain. They were perfectly prepared for another 
remove into a new country. They were in the 
prime of life ; they had brought their farms into 
a high state of cultivation for those times ; had 
acquired most of the conveniences which they 
desired ; and seeing little room for the improve- 
ment of their condition, they felt a want of that 
peculiar excitement which had rendered them so 
happy in their new settlement, and a strong de- 
sire to live their lives over again, in another new 
settlement, on the New Hampshire Grants. 
Col. Chittenden, having procured all the con- 



THOMAS CHITTENDEJT. 15 

venlences of life, and having no taste for luxu- 
ries, became, with his neighbors, dissatisfied with 
Jiis condition, and determined to remove to the 
New Hampshire Grants. Accordingly, he join- 
ed with his neighbor, Jonathan Spafford, in the 
purchase of a large tract of land in Willis ton, on 
Onion River, which they divided in such a manner 
as to make each a most valuable farm. 

In the month of May, 1774, Col. Chittenden 
removed his family onto the land which he had 
purchased in WilHston, without having prepared 
any shelter for them. But, by his native energy, 
his untiring industry, and ample means, he soon 
placed them in a comfortable situation, and rapid- 
ly cleared his rich alluvial land, which produced 
Indian corn and other grain in such abundance, 
that, at the end of two years, he had an ample 
supply of provisions for his family, and a surplus 
for others, and nothing seemed wanting to yield 
liim, in full measure, the pecuhar happiness of a 
new settler. But, on the retreat of the Ameri- 
can army from Canada, in the spring of 1776, by 
which the settlers on Onion River were exposed 
to the incursions of the enemy, his bright pros- 
pects of peace and happiness were suddenly chang- 
ed. He was forced to "leave the reaping of 



16 MEMOIR OF 

AViieat fur tlie reaping of foes," — but his native 
energy did not forsake him for a moment. He, 
^vith two of his neighbors, immediately repaired 
to Philadelphia, to ascertain "what were the de- 
siscns of Congress in relation to the defence of the 
jS^orthern frontier. The result was, that Congress 
could provide no protection for the inhabitants in 
that quarter, and hard as it was for him to leave 
his farm, which was so dear to him, yet, the idea 
never entered his mind to submit to the enemy to 
save his property, but he at once prepared to re- 
move to the south part of the Grants, The whole 
family, including women and children, went on 
foot, by marked trees, through Middlebury to 
Castleton, their provisions and clothing being car- 
ried on two horses. They arrived safely at Cas- 
tleton, and proceeded thence to Danby, where 
Col. Chittenden purchased or rented a farm, in 
the south part of the town, near the foot of the 
Mountain. He resided on this farm until Ticon- 
deroga was evacuated, in July, 1777, when he re- 
moved to Pownal, where he resided at the time of 
Bennington battle. Soon after this, he removed 
to Williamstown, Mass. 

The Council of Safety, of which Col. Chittenden 
was President, held a perpetual session in Benning- 



THOMAS CHITTENDEN". IT 

ton, from about the middle of July until after the 
capture of Burgoyne, when he purchased a farm 
in Arlington, on which he resided until 178T. 

It has been justly remarked that, in every 
important crisis in human affairs. Providence 
raises up men peculiarly fitted for the exigences 
of the times. This is strikingly verified in the 
early history of Vermont. When a people are 
assailed, and compelled to take arms in defence 
of their rights, the public and individual interest 
become identical. Thus, when New York claimed 
not only jurisdiction over the New Hampshire 
Grants, but the right of soil — the farms on which 
the settlers lived — the whole people united, and 
selected their most able and efficient men for 
their leaders, Ethan Allen, Seth Warner, and 
Kemember Baker, for their military leaders, and 
Samuel Robinson, Jonas Fay, and others, to act 
in concert with them, and they were successful, 
as a brave and united people ever are, in de- 
fence of their rightful possessions. Mankind 
have ever considered their domicils, their fire- 
sides, as sacred, and worthy the protection of the 
gods, hence the Penates, the household gods of 
the ancients. 

When the Green Mountain Boys had achieved 
3 



18 MEMOIR OF 

their independence, they had a far mare difficult 
task to perform. It was necessary for the people 
to estabhsh civil government, and become submis-' 
sive to the laws. This was considered at the time^ 
by all intelligent men, as a difficult and hazardous 
undertaking. The people had, for so long a time^ 
successfujly resisted the authority of New York^ 
the only authority attempted to be exercised over 
them, that they had, in some measure, lost their 
Puritan habits of submission to lawful authority^ 
and respect for the magistrates. 

In this state of things, to form a constitution 
adapted to the situation, temper, and habits of the 
people, and to establish a code of laws, shackling 
them with no more regulations than they would 
bear, and at the same time calculated to bring 
them into a habit of submission to lawful authori- 
ty, required for a leader, not only a wise patriot, 
but a man having a peculiar tact in exerting an in- 
fluence on the minds of men, and inducing them 
to follow his lead. 

At this critical period of our affairs. Col. Chit- 
tenden, who, as we have seen, came into the 
Grants a short time before, just in season to be- 
come generally known, was at once selected as a 
leader in all civil affairs. He was a member of 



THOMAS CHITTENDEN. 19 

the convention liolden at Dorset in September, 
1776, for the purpose of taking into consideration 
the expediency of declaring Vermont an independ- 
ent State. And at a subsequent meeting of the 
convention, at Westminster, he was a member of 
the committee who drafted the declaration of in- 
dependence, and also a member of the committee 
appointed to petition Congress to acknowledge the 
independence of the State. He was also a lead- 
ing member of the convention holden at Windsor, 
on the 2d of July, 1777, which formed the first Con- 
stitution of Vermont ; and, as we have seen, he 
was President of the Council of Safety, which 
was vested with all the powers of Government — ■ 
executive, legislative and judicial — to be exercised 
until the government should be organized under 
the Constitution. Those who personally knew 
Col. Chittenden perceive that he was the master 
spirit in that body. His sagacity, humanity, and 
sound discretion, are conspicuous especially in the 
disposition of the Tories, their estates, and their 
families. 

He was elected the first Governor, and was con- 
tinued in that office, with the exception of one 
year, until 1797. During the whole course of 
his public Hfe in Vermont, it appeared that he 



20 MEMOIR OF 

had been formed, by nature, and by education, 
purposely for the different stations in -which he 
was placed. 

He seldonj took one step in reasoning on any 
subject, but his perceptions were so keen, and his 
mind so comprehensive, that he took a clear and 
full view of any subject, however complex, and 
made a correct decision, intuitively. Ethan Al- 
len, who published a book entitled " Reason the 
only oracle of Man ", and who subjected every- 
thing to the test of his own reasoning, both in the 
visible and invisible world, used to say of Govern- 
or Chittenden, that he was the only man he ever 
knew, who was sure to be right in all even the 
most difficult and complex cases, and yet could 
not tell or seem to know why he was so. Govern- 
or Chittenden being thus entirely practical, pur- 
suing a course dictated by a clear view of the ex- 
isting state of things, was never misled by any 
theories in the science of government and law ad- 
apted to a people differing in every way from the 
Green Mountain Boys. Hence he devised the 
quieting act, an act to secure the settlers in theu' 
possessions, and supported the tender acts, judg- 
ing correctly, that they were absolutely necessa- 
ry to prevent the dissolution of government. He 



THOMAS CHITTENDEN. 21 

had a peculiar tact in discovering the disposition 
of those with whom he conversed, by which he ac- 
quired an influence that enabled him to carry into 
effect any measures which he proposed. 

Gentlemen from the other states who transact- 
ed business with him, expressed their astonishment 
that he was able to penetrate their designs, and 
obtain as clear a knowledge of them as they had 
themselves. One gentleman remarked that he 
was enabled to do this by his familiar, rapid, and 
apparently unpremeditated conversation, by which 
they were thrown off their guard. Gov. Chitten- 
den, observing that the people, from their peculiar 
situation, had imbibed a high degree of personal 
independence, and that each individual consider- 
ed that his own opinion was deserving of great 
weight in all pubHc affairs, seldom attempted to 
induce any one to support any proposed measure 
by giving his own opinion, and supporting it by ar- 
guments, but by asking advice, and putting ques- 
tions so adroitly as to elicit the desired answer. 
And thus each individual with whom he conversed 
had the vanity to believe that the Governor was 
following his advice, that his opinion had prevailed, 
and he would support it with great earnestness. 

Seldom has any man in public life acquired so 



22 MEMOIR OF 

commancllng an influence, and no one ever exert 
ed his influence as he did without impairing it ; 
indeed he exerted his influence on certain occa- 
sions, in such a manner as no other man could 
Lave done, without putting an end to his influence 
at once. 

"When presiding as chairman in a joint meeting 
of the two Houses, for the appointment of county 
officers, he would oppose the appointment of any 
one nominated, if he considered him unfit for the 
office. He, of course, occasionally gave ofience, 
and excited angry feelings against him, but he 
had a peculiar faculty to allay those feelings. 
The following is an instance of this. He and 
General Spafford had ever been attached friends, 
and Spafford, being a Representative from the town 
of Williston, procured in the county convention 
a nomination of Daniel Stannard, of Jericho, for 
Justice of the Peace. Governor Chittenden very 
strenuously opposed his appointment, but his influ- 
ence failed him on this occasion, and Stannard 
received the appointment. Governor Chittenden 
knowing that Spafford was strongly attached to 
Stannard, who was his brother-in-law, and fearing 
that he had oftended Spafford by opposing this ap- 
pointment, took the first opportunity to speak with 



(rSOMAS CHWTENDE^. ^3 

Spatford, and said : " Well, you have appointed 
Stannard a Justice of the Peace, after all.'^ 
*« Yes/' said Spaflford, " and I think we have done 
right." "Well, well," says the Governor, "I 
don't know but you have— he is a strange creature/ 
I really believe he will make a better Justice of 
the Peace than I think he will." So in all cases 
where he had given offence and made an enemy^ 
he never treated him as an enemy, seeking revenge,' 
and obtaining what is falsely called satisfaction^ 
but he treated him with the same familiarity and 
kindness as before. 

His own kind feelings and good sense had taught 
him that the beneficent Creator has so constituted 
man that he is not necessarily rendered unhappy 
because others have become his enemies ; that if 
he were thus exposed, his happiness would not de- 
pend on himself, or his own good disposition and 
virtuous course of life, but on the good pleasure, 
or rather, ill-nature of others ; that if any 
one becomes an enemy to others, actuated by a 
spirit of revenge instead of kindness, he is neces- 
sarily unhappy ; and that, therefore, to cherish 
feelings of kindness to all, doing good to those who 
hate us, is acting agreeably to the laws of nature. 

Governed by these Christian principles, and 



24 MEMOIK OF 

actuated by a disposition, naturally benevoleiit 
and kind, seeking the welfare of all, no wonder 
that he acquired a great and enduring popularity. 

His situation, too, at the head of the new gov- 
ernment, which required constant nursing, pro- 
duced in him a strong attachment to it, and ex- 
cited him to constant exertions for its support, for 
he knew that if the government should be over- 
thrown, he should become a Governor Dorr. 

From this view of his character and situation, 
We are able to account for the strong attachment 
of the people to Governor Chittenden, and for the 
lingular fact, that when, in the year 1786, a por- 
tion of the people rose in arms to overthrow the 
government which they had instituted, they all 
looked upon Governor Chittenden as their pecu. 
liar friend, which enabled him to steer the vessel 
of state through the storm. 

I cannot but hope that I shall meet with the 
approbation of the reader, if I devote no further 
portion of the work exclusively to portraying the 
character of Gov. Chittenden. AYhat has been 
said will render the following history of the Con- 
stitution more clear, and more interesting, and 
that history in which he will so often appear as 



* 



THOiMAS CHITTENDEJ^. 25 



tke principal actor will give the reader a raore 
full knowledge of his character. 

The biography of Gov. Chittenden should have 
been written by one of his cotemporaries, who act- 
ed with him during his administration, and inti- 
mately knew all the traits of his mind and char- 
acter, and wh-o could have given many personal 
anecdotes, so interesting in biography, and so im- 
portant in portraying his character. 

Perhaps Gov. Chittenden would not have been 
so distinguished in the administration of a govern- 
ment which had been long established. No man 
was ever blessed with such a versatihty of talent 
as to be equally useful in any station. But we al- 
ways think more highly of a man who has con- 
structed a compHcated machine, set it in motion 
by a propelling power of precisely that force which 
the machine would bear, and put it in successful 
operation, than we do of an operative who has 
been taught to tend a machine which has been 
long in use. 



26 MEMOIR OF 



CHAPTER II. 

The first Constitution of Vermont — A copy of the first Con- 
stitution of Pennsylvania, with some alterations and ad- 
ditions. 

It has been seen that the first Constitution of 
Vermont was framed by a convention holden at 
Windsor, on the 2d day of July, 1777. The 
convention had gone through -with the constitu- 
tion, section by section, when the unexpected and 
startling intelhgence was received of the evacua- 
tion of Ticonderoga. The attention of all was 
instantly turned to the security of their families, 
and the convention broke up without making any 
provision for printing the Constitution. From 
this time, the attention of all was diverted from 
the Constitution to the defence of the country, 
until after the capture of Burgoyne. In Decem- 
ber following, the convention met, revised the 
Constitution, and made preparation for organizing 
the government in March ^ 1778. 

At that timd, it was generally known that the 
first Constitution of Vermont was, in substance, 
a copy of the first Constitution ofJPennsylvania, 
but this fact seiems to have esC!?J^ the notice of 



THOMAS CHITTENDEN. 27 

historians. The address of Dr. Young, of Phil- 
adelphia, to the people of Vermont, has been pre- 
served, in which is the following : — " I have rec- 
ommended to your committee the Constitution of 
Pennsylvania, as a model, which, with a very lit- 
tle alteration, will, in my opinion, come as near 
' perfection as any thing yet concocted by man- 
kind. This Constitution has been sifted with all 
the criticism that a band of despots was master 
of, and has bid defiance to their united powers. " 
No wonder there were some political enthusiasts in 
those piping times, and no wonder that the people 
of Vermont preferred the Constitution of Pemi- 
sylvania to any other, for it was supposed to be 
the work of Franklin. 

As the Constitution of Vermont contained in 
Thompson's History is not the first Constitution of 
1778, nor the Constitution as amended in 1786, 
but the Constitution as amended in 1793, and as 
it is believed that our first Constitution is no where 
to be found, except in the Vermont State Papers, 
I have thought the reader would be pleased to 
have it inserted in this work. And that he may 
see at a glance, how far it is a copy of the first 
Constitution of Pennsylvania, the additions to the 
latter, and the alterations in it, made in framing 



28 MEMOIR OF 

tlie Constitution of Vennont, are enclosed in brack- 
ets. 

CHAPTER I. 

A DECLARATION OF THE RIGHTS OF THE INHABIT- 
ANTS OF THE STATE OF VERMONT. 

I. That all men are born equally free and in- 
dependent, and have certain natural, inherent and 
unalienable rights, amongst Avhich are the enjoy- 
ing and defending life and liberty ; acquiring, pos- 
sessing, and protecting property, and pursuing and 
obtaining happiness and safety. [Therefore, no 
male person, born in this country, or brought from 
over sea, ought to be holden by law, to serve any 
person, as a servant, slave, or apprentice, after he 
arrives to the age of twenty-one years, nor female, 
in like manner, after she arrives to the age of 
eighteen years, unless they are bound by their 
own consent, after they arrive to such age, or 
bound by law, for the payment of debts, damages, 
fines, costs, or the like. 

II. That private property ought to be subser- 
vient to public uses, when necessity requires it ; 
nevertheless, w^henever any particular man's prop- 
erty is taken for the use of the public, the owner 
ought to receive an equivalent in money.] 

III. That all men have a natural and unaliena- 
ble right to worship Almighty God, according to 
the dictates of their own consciences and under- 
standing, regulated by the word of God ; and that 



THOMAS CIIITTENDExY. 29 

no man ought, or of right can be compelled to at- 
tend any rehgious worship, or erect, or support 
any place of worship, or maintain any minister, 
contrary to the dictates of his conscience ; [nor 
can any man who professes the protestant relig- 
ion] be justly deprived or abridged of any civil 
right, as a citizen, on account of his religious sen- 
timent, or peculiar mode of religious worship, and 
that no authority can, or ought to be vested in, or 
assumed by, any power whatsoever, that shall, in 
any case, interfere with, or in any manner con- 
trol, the rights of conscience, in the free exercise 
of religious worship ; [nevertheless, every sect or 
denomination of people ought to observe the Sab- 
bath, or the Lord's day, and keep up, and support 
some sort of religious worship, which to them shall 
seem most agreeable to the revealed will of God. 

IV. That the people of this State have the sole, 
exclusive, and inherent right of governing and 
regulating the internal police of the same.] 

V. That all power being originally inherent in, 
and consequently derived from, the people ; there- 
fore, all officers of government, whether legisla- 
tive or executive, are their trustees and servants, 
and at all times accountable to them. 

VI. That government is, or ought to be, insti- 
tuted for the common benefit, protection, and se- 
curity of the people, nation or community ; and 
not for the particular emolument or advantage of 
any single man, family or set of men, who are a 
part only of that community ; and that the com- 
munity hath an indubitable, unalienable and 
indefeasible right to reform, alter, or abolish gov- 



30 MEMOIR OP 

ernment, in such manner as sLallbe,bj that com- 
munity, judged most conducive to the pubhc weal. 

VII. That those who are employed in the leg- 
islative and executive business of the State, may 
be restrained from oppression, the people have a 
right, at such periods as they may think proper, 
to reduce their public officers to a private station, 
and supply the vacancies by certain and regular 
elections. 

YIII. That all elections ought to be free ; and 
that all freemen, having a sufficient, evident com- 
mon interest with, and attachment to, the commu- 
nity, have a right to elect officers, or be elected 
into office. 

IX. That every member of society hath a right- 
to be protected in the enjoyment of life, liberty 
and property, and therefore, is bound to contri- 
bute his proportion towards the expense of that 
protection, and yield his personal service, when 
necessary, or an equivalent thereto ; but no part 
of a man's property can be justly taken from him, 
or applied to public uses, without his own consent, 
or that of his legal representatives ; nor can any 
man who is conscientiously scrupulous of bearing 
arms, be justly compelled thereto, if he will pay 
such equivalent ; nor are the people bound by any 
law, but such as they have, in like manner, as- 
sented to, for their common good. 

X. That, in all prosecutions for criminal of- 
fences, a man hath aright to be heard, by himself 
and his counsel — to demand the cause and nature 
of his accusation — to be confronted with the wit- 
nesses — to call for evidence in his favor, and a 



THOMAS CHlTTENDEIsf. 31 

Speedy public trial, by an impartial jury of the 
country ; without the unanimous consent of -whicli 
jury, he cannot be found guilty ; nor can he be 
compelled to give evidence against himself; nor 
can any man be justly deprived of his liberty, 
except by the bws of the land ^or the judgment of 
his peers. 

XI. That the people have a right to hold them- 
selves, their houses, papers and possessions free 
from search or seizure ; and therefore warrants, 
without oaths or affirmations first made, affording 
a sufficient foundation for them, and whereby any 
officer or messenger may be commanded or re- 
quired to search suspected places, or to seize any 
person or persons, his, her or their property, not 
particularly described, are contrary to that right, 
and ought not to be granted. 

[XII. That no warrant or writ to attach the 
person or estate, of any freeholder Avithin this 
State, shall be issued ija-f^ivil action, without the 
person or persons, who may request such warrant 
or attachment first make oath, or affirm, before 
the authority who may be requested to issue the 
same, that he, or they, are in danger of losing 
his, her or their debts.] 

XIII. That, in controversies respecting proper- 
ty, and in suits between man and man, the par- 
ties have a right to a trial by jury ; which ought 
to be held sacred. 

XIV. That the people have a right to freedom 
of speech, and of writing and pubhshing their 
sentiments ; therefore, the freedom of the press 
ought not to be restrained. 



32 MEMOIR OF 

XV. That the people have a right to bear 
arms for the defence of themselves and the State ; 
and, as standing armies, in the time of peace, are 
dangerous to liberty, they ought not to be kept up; 
and that the military should be kept under strict 
subordination to, and governed by the civil power* 

XVI. That frequent recurrence to fundament^ 
al principles, and a firm adherence to justice, mod- 
eration, temperance, industry and frugality, are 
absolutely necessary to preserve the blessings of 
liberty, and keep government free. The people 
ought, therefore, to pay particular attention to 
these points, in the choice of officers and repre- 
sentatives, and have a right to exact a due and 
constant regard to 'them, from their legislators 
and magistrates, in the making and executing 
such laws as are necessary for the good govern- 
ment of the State. 

XVII. That all people have a natural and in- 
herent right to emigrate from one State to anoth- 
er, that will receive them ; or to form a new State 
in vacant countries, or in such countries as they 
can purchase, whenever they think that thereby 
they can promote their own happiness. 

XVIII. That the people have a right to assem- 
ble together, to consult for their common good — > 
to instruct their representatives, and to apply to 
the legislature for redress of grievances, by ad- 
dress, petition or remonstrance. 

[XIX. That no person shall be liable to be 
transported out of this State for trial, for any of- 
fence committed within this State.] 



THOMAS CHITTENDEN. 33 



CHAPTER II. 



PLAN OR FRAME OF GOVERNMENT. 
SECTION I. 

The Commonwealth or State of Vermont 
sliall be governed, hereafter, bj a Governor, De- 
puty Governor, Council, and an Assembly of the 
Representatives of the Freemen of the same, in 
manner and form following. 

SECTION II. 

The supreme Legislative power shall be vested 
in a House of Representatives of the Freemen or 
Commonwealth or State of Vermont. 

SECTION IIL 

The supreme executive power shall be vested 
in a Governor and Council. 

SECTION IV, 

Courts of justice shall be estabHshed in every 
county in this State. 

SECTION V. 

The freemen of this Commonwealth, and their 
Bons shall be trained and armed for its defence, 
under such regulations, restrictions and excep- 
tions, as the General Assembly shall, by law, di- 
rect ) preserving always to the people, the right 
5 



34 MEMOIR OF 

of choosing their colonels of militia, and all com- 
missioned officers under that rank, in such man- 
ner, and as often, as by the said laws shall be di- 
rected. 

SECTION VI. 

Every man of the full age of twenty-one years, 
having resided in the State for the space of one 
whole year, next before the election of represen- 
tatives, [and who is of a quiet and peaceable be- 
haviour, and will take the following oath (or af- 
firmation) shall be entitled to all the privileges 
of a freeman of this State. 

I solemnly swear, by the ever 

living God, (or affirm, in the presence of Almigh- 
ty God,) that whenever I am called to give my 
vote or suffrage, touching any matter that con- 
cerns the State of Vermont, I will do it so, as in 
my conscience, I shall judge will most conduce 
to the best good of the same, as established by 
the constitution, without fear or favor of any 
man.] 



SECTION VII. 



The House of Representatives of the Freemen 
of this State, shall consist of persons most noted 
for wisdom and virtue, to be chosen by the free- 
men of every to^yn in this State, respectively. 
And no foreigner shall be chosen, unless he has 
resided in the town for which he shall be elected, 
one year immediately before said election. 



THOMAS CHITTENDEN. 35 



SECTION VIII. 



The members of the House of Representatives 
shall be chosen annually, by ballot, by the free- 
men of this State, on the first Tuesday of Sep- 
tember, forever, (except this present year,) and 
shall meet on the second Thursday of the suc- 
ceeding October, and shall be styled the General 
Assembly of the Representatives of the Freemen 
of Vermont ; and shall have the po^Yer to choose 
their Speaker, Secretary of the State, their Clerk, 
and other necessary ofiicers of the house — sit on 
their own adjournments — prepare bills and enact 
them into laws — judge of the elections and quali- 
fications of their own members — they may expel 
a member, but not a second time for the same 
cause — they may administer oaths (or affirma- 
tions,) on examination of witnesses — redress 
grievances — impeach State criminals — grant char- 
ters of incorporation — constitute towns, boroughs, 
cities and counties, and shall have all other pow- 
ers necessary for the legislature of a free State : 
but they shall have no power to add to, alter, 
abolish, or infringe, any part of this constitution. 
And for this present year, the members of the 
Oeneral Assembly shall be chosen on the first 
Tuesday of March next, and shall meet at the 
meeting house, in Windsor , on the second Thurs- 
day of March next. 



SECTION IX. 



A quorum of the house of representatives shall 
consist of two thirds of the whole number of mem- 
bers elected ; and having met and chosen • their 



8G MEMOIR OF 

speaker, shall, each of them, before they proceed 
to business, take and subscribe, as well the oath 
cf fidelity and allegiance herein after directed, 
as the following oath or affirmation, viz. 

I do solemnly swear, by the ever 

living God, (or, I do solemnly affirm in the pres- 
ence of Almighty God,)that as a member of this 
assembly, I will not propose or assent to any bill, 
vote, or resolution, which shall appear injurious 
to the people ; nor do or consent to any act or 
thing whatever, that shall have a tendency to les- 
sen or abridge their rights and privileges, as de- 
clared in the Constitution of this State ; but will, 
in all things, conduct myself as a faithful, honest 
representative and guardian of the people, accor- 
ding to the best of my judgment and abihties. 

And each member, before he takes his seat, 
shall make and subscribe the following declaration, 
viz: 

I do believe in one God, the Creator and Gov- 
ernor of the Universe, the re warder of the good 
and the punisher of the wicked. And I do ack- 
nowledge the scriptures of the old and new testa- 
ment to be given by divine inspiration, [and own 
and profess the protestant rehgion.] 

And no further or other religious test shall ev- 
er, hereafter, be required of any civil officer or 
magistrate in this State. 

SECTION X. 

Delegates to represent this State in Congress 
shall be chosen, by ballot, by the future General 
Assembly, at their first meeting, and annually, 



THOMAS CHITTENDEN. 37 

forever afterward, as long as such representation 
shall be necessary. Any Delegate may be super- 
seded, at any time, by the General Assembly ai> 
pointing another in his stead. No man shall sit 
in Congress longer than two years successively, 
nor be capable of re-election for three years after- 
wards ; and no person who holds any office in the 
gift of the Congress, shall, thereafter, be elected 
to represent this State, in Congress. 

I SECTION XL 

If any town or towns shall neglect or refuse to 
elect and send representatives to the General As- 
sembly, two thirds of the members of the towns, 
that do elect and send representatives, (provided 
they be a majority of the inhabited towns of the 
whole State,) when met, shall have all the powers 
of the General Assembly, as fully and amply, as 
if the whole were present. 

SECTION XII. 

The doors of the house in which the represen- 
tatives of the freemen of this State shall sit, in 
General Assembly, shall be and remain open for 
the admission of all persons, who behave decent- 
ly, except only, when the welfare of this State 
may require the doors to be shut. \ 

SECTION XIII. 

The votes and proceedings of the General As- 
sembly shall be printed, weekly, during their sit- 
ting, with the yeas and nays, on any question, 
vote or resolution, where one third of the mem- 
bers require it ; (except when the votes are ta- 
ken by ballot ;) and when the yeas and nays are 



38 MEMOIR OF 

SO taken, every member shall have a right to in- 
sert the reasons of his votes upon the minutes, if 
he desire it. 

SECTION XIV. 

To the end that laws, before they are enacted, 
may be more maturely considered, and the incon- 
veniency of hasty determination as much as pos- 
sible prevented, all bills of a public nature, [shall 
first be laid before the Governor and Council, for 
their perusal and proposals of amendment, and 
shall be printed for the consideration of the peo- 
ple, before they are read in General Assembly, 
for the last time of debate and amendment ; ex- 
cept temporary acts, "which, after being laid before 
the Governor and Council, may (in case of sud- 
den necessity) be passed into laws ;] and no oth- 
er shall be passed into laws, tmtil the next session 
of assembly. And for the more perfect satisfac- 
tion of the public, the reasons and motives for 
making such laws, shall be fully and clearly ex- 
pressed and set forth in their preambles. 

SECTION XV. 

The style of the laws of this State shall be, — 
" Be it enacted, and it is hereby enacted, by the 
Representatives of the Freemen of the State of 
Vermont^ in General Assembly met, and by the 
authority of the same." 

SECTION XVI. 

In order that the Freemen of this State might 
enjoy the benefit of election, as equally as may 
be, each town in this State, that consists, or may 



THOMAS CIIITTENDEjr. 30 

consist, of eighty taxable inhabitants, "within one 
septenary or seven years, next after the estabhsh- 
ing this constitution, may hold elections therein, 
and choose, each, two representatives ; and each 
other inhabited town in this State may, in like 
manner, choose, each, one representative, to rep- 
resent them in General Assembly, during the 
septenary or seven years ; and after that, each 
inhabited town may, in like manner, hold such e- 
lection, and choose, each, one representative, for- 
ever thereafter. 

SECTION XVli. 

The Supreme Executive Council of this State 
shall consist of a Governor, Lieutenant-Governor, 
and twelve persons, chosen in the following man- 
ner, viz. The Freemen of each town, shall, on 
the day of election for choosing representatives 
to attend the General Assembly, bring in their 
votes for Governor, with his name fairly written, 
to the constable, who shall seal them up and write 
on them, votes for the Governor, and deliver them 
to the representative chosen to attend the Gener- 
al Assembly ; and, at the opening of the Gener- 
al Assembly, there shall be a committee appoint- 
ed out of the Council, and Assembly, who, after 
being duly sworn to the faithful discharge of their 
trust, shall proceed to receive, sort, and count, 
the votes for the Governor, and declare the per- 
son who has the major part of the votes, to be 
Governor, for the year ensuing. And if there 
be no choice made, then the Council and General 



t 



40 M12M0IR OP 

Assembly, by their joint ballot, shall'make choice 
of a Governor. 

The Lieutenant Governor and Treasurer shall 
be chosen in the manner above directed ; and 
each freeman shall give in twelve votes for twelve 
councillors, in the same manner ; and the twelve 
highest in nomination shall serve for the ensuing 
year as Councillors. 

The Council* that shall act in the recess of this 
Convention, shall supply the place of a Council 
for the next General Assembly, until the new 
Council be declared chosen. The Council shall 
meet annually, at the same time and place with 
the General Assembly ; and every member of the 
Council shall be a Justice of the Peace for the 
whole State, by virtue of his office. 

SECTIOX XVIII. 

The Governor, and in his absence, the Lieuten- 
ant or Deputy Governor, with the Council — sev- 
en of whom shall be a quorum — shall have power 
to appoint and commissionate all officers, (except 
those who are appointed by the General Assem- 
bly,) agreeable to this frame of government, and 
the laws that may be made hereafter ; and shall 
supply every vacancy in any office, occasioned by 
death, resignation, removal or disqualification, un- 
til the office can be filled, in the thue and manner 
directed by law orthis constitution. They are to 
correspond with other States, and transact business 
with officers of government, civil and military ; and 
to prepare such business as may appear to them 
necessary to lay before the General Assembly. 

*The Council of Safety is here alluded to. 



lilOMAS CHITTENDEK". 41 

They shall sit as judges to hear and determine 
on impeachments, taking to their assistance, for 
advice only, the justices of the supreme court ; 
and shall have power to grant pardons, and remit 
fines, in all cases whatsoever, except cases of im- 
peachment, and in cases of treason and murder — 
shall have power to grant reprieves, but not to 
pardon, until the end of the next session of the 
Assembly : but there shall be no remission or mit- 
igation of punishment, on impeachments, except 
by act of legislation. They are also, to take care 
that the laws be faithfully executed. They are 
to expedite the execution of such measures as may 
be resolved upon by General Assembly ; and they 
may draw upon the Treasurer for such sums as 
may be appropriated by the House : they may 
also lay embargoes, or prohibit the exportation of 
any commodity for any time, not exceeding thirty 
days, in the recess of the House only : they may 
grant such licenses as shall be directed by law, 
and shall have power to call together the General 
Assembly, when necessary, before the day to which 
they shall stand adjourned. The Governor shall 
be commander in chief of the forces of the State ; 
but shall not command in person, except advised 
thereto by the Council, and then, only as long as 
they shall approve thereof. The Governor and 
Council shall have a Secretary, and keep fair 
books of their proceedings, wherein any Council- 
lor may enter his dissent, with his reasons to sup- 
port it. 

SECTION XIX. 

All commissions shall be in the name of the 
: 6 



42 MEMOIR OF 

freemen of the State of Vermont, sealed witb 
the State seal, signed by the Governor, and in his 
absence, the Lieutenant Governor, and attested 
by the Secretary ; which seal shall be kept by the 
Council. 

SECTION XX. 

Every officer of State, whether judicial or ex- 
ecutive, shall be liable to be impeached by the 
General Assembly, either when in office, or after 
his resignation, or removal for mal-administration. 
All impeachments shall be before the Governor or 
Lieutenant Governor and Council, who shall hear 
and determine the same. 

SECTION XXI. 

The supreme court, and the several courts of 
common pleas of this State shall, besides the pow- 
ers usually exercised by such courts, have the 
powers of a court of chancery, so far as relates 
to perpetuating testimony, obtaining evidence from 
places not within this State, and the care of per- 
sons and estates of those who are non compotes 
onentis, and such other powers as may be found 
necessary by future General Assemblies, not in- 
consistent with this constitution. 

SECTION XXII. 

Trials shall be by jury ; and it is recommended 
to the legislature of this State to provide by lawy 
against every corruption or partiality in the choice, 
and return, or appointment, of juries. 

SECTION XXII I. 

All courts shall be open, and justice shall be 



\ 



THOMAS CHITTENDEN. 43 

impartially administered, without corruption or un- 
necessary delay ; all their officers shall be paid an 
adequate, but moderate, compensation for their 
services ; and if any officer shall take greater or 
other fees than the laws allow him, either directly 
or indirectly, it shall ever after disqualify him from 
holding any office in this State. 

SECTION XXIV. 

All prosecutions shall commence in the name 
and by the authority of the freemen of the State 
of Vermont, and all indictments shall conclude 
with these words, " against the peace and dignity 
of the same." The style of all process hereaf- 
ter, in this State, shall be, — The State of Ver- 
mont. 

SECTION XXV. 

The person of a debtor, where there is a strong 
presumption of fraud, shall not be continued in 
prison, after delivering up, bona fide, SiWhis estate, 
real and personal, for the use of his creditors, in 
such manner as shall be hereafter regulated by 
law. All prisoners shall be bailable by sufficient 
securities, unless for capital offijnces, when the 
proof is evident or presumption great. 

SECTION XXVI. 

Excessive bail shall not be exacted for bailable 
offences : and all fines shall be moderate. 

SECTION XXVII. 

That the General Assembly, when legally form- 
ed, shall appoint times and placei^ for county elec- 
tions, and at such times and places, the freemen 



44 MEMOIR OF 

in each county respectively, shall have the liberty 
of choosing the judges of inferior court of com- 
mon pleas, sheriff, justices of the peace, and judges 
of probate, commissioned by the Governor and 
Council, during good behavior, removable by the 
General Assembly upon proof of mal- administra- 
tion. 

SECTION XXVIII. 

That no person shall be capable of holding any 
civil office, in this State, except he has acquired, 
and maintains a good moral character. 

SECTION XXIX. 

All elections, whether by the people or in Gen- 
eral Assembly, shall be by ballot, free and volun- 
tary : and any elector who shall receive any gift 
or reward for his vote, in meat, drink, monies or 
otherwise, shall forfeit his right to elect at that time 
and suffer such other penalty as future laws shall 
direct. And any person who shall, directly or in- 
directly, give, promise, or bestow, any such re- 
wards to be elected, shall, thereby, be rendered 
incapable to serve for the ensuing year. 

SECTION XXX, 

All fines, licence money, fees and forfeitures, 
shall be paid, according to the direction hereafter 
to be made by the General Assembly. 

SECTION XXXI, 

All deeds and conveyances of land shall be re- 
corded in the town clerk's office, in their respect- 
ive towns. 



THOMAS CHITTENDEN. 45 



SECTION XXXII. 



The printing presses shall be free to every per- 
son who undertakes to examine the proceedings of 
the legislature, or any part of government. 



SECTION XXXIII. 



As every freeman, to preserve his independence 
(if without a suiSicient estate) ought to have some 
profession, calling, trade or farm, whereby he may 
honestly subsist, there can be no necessity for, 
nor use in, estabHshing offices of protit, the usual 
effects of which are dependence and servility, un- 
becoming freemen, in the possessors or expectants ; 
faction, contention, corruption and disorder among 
the people. But if any man is called into public 
service, to the prejudice of his private affairs, he 
has a right to a reasonable compensation ; and 
whenever an office, through increase of fees, or 
otherwise, becomes so profitable as to occasion 
many to apply for it, the profits ought to be les- 
sened by the legislature. 



SECTION XXXIV. 



The future legislature of this State, shall regu- 
late entails, in such manner as to prevent perpe- 
tuities. 



SECTION XXXV. 



To deter more effectually from the commission 
of crimes, by continued visible punishment of 
long duration, and to make sanguinary punish- 
ments less necessary ; houses ought to be provi- 



46 MEMOIR OF 

cled for punislimg, by hard labor, tbose who shall 
be convicted of crimes not capital ; wherein the 
criminal shall be employed for the benefit of the 
pubhc, or for reparation of injuries done to private 
persons ; and all persons, at proper times, shall be 
admitted to see the prisoners at their labor. 

SECTION XXXVI. 

Every officer, whether judicial, executive or 
military, in authority under this State, shall take 
the following oath or affirmation of allegiance, and 
general oath of office, before he enter on the exe- 
cution of his office. 

The Oath or Affirmation of Allegiance. 

" I do solemnly swear by the 

ever living God, (or affirm in presence of Almigh- 
ty God,) that I will be true and faithful to the 
State of Vermont ; and that I will not, directly 
or indirectly, do any act or thing, prejudicial or 
injurious to the constitution or government there- 
of, as estabUshed by Convention." 

The Oath or Affirmation of Office. 

" I do solemnly swear by the 

ever living God, (or affirm in presence of Almigh- 
ty God) that I will faithfully execute the office 

of for the of ; and will do equal 

right and justice to all men, to the best of my 
judgment and abilities, according to law." 

SECTION XXXVII. 

No public tax, custom or contribution shall be 
imposed upon, or paid by, the people of this State, 



THOMAS CHITTENDEN. 47 

except by a law for that purpose ; and before any 
law be made for raising it, the purpose for which 
any tax is to be raised ought to appear clear to 
the legislature to be of more service to the com- 
munity than the money would be, if not collected ; 
which being well observed, taxes can never be 
burthens. 

SECTION XXXVIII. 

I 

Every foreigner of good character, who comes 
to settle in this State, having first taken an oath 
or affirmation of allegiance to the same, may pur- 
chase, or by other just means acquire, hold, and 
transfer, land or other real estate ; and aft^r 
one year's residence, shall be deemed a free 
denizen thereof, and entitled to all the rights of a 
natural born subject of this State ; except that he 
shall not be capable of being elected a represen- 
tative, until after two years residence. 

SECTION XXXIX. 

That the inhabitants of this State, shall have 
liberty to hunt and fowl, in seasonable times, on 
the lands they hold, and on other lands (not en- 
closed ;) and, in like manner, to fish in all beata- 
ble and other waters, not private property, [un- 
der proper regulations, to be hereafter made and 
provided by the General Assembly.] 

SECTION XL. 

A school or schools shall be established in each 
town,^y the legislature, for the convenient in- 
struction of youth, with such salaries to the mas- 



48 MEMOIU OF 

ters, paid by each town ; making proper use of 
school lands in each town, thereby to enable them 
to instruct youth at low prices. One grammar 
school in each county, and one university in this 
State, ought to be established by the direction of 
the General Assembly. 

SECTION" XLI. 

Laws for the encouragement of virtue and pre- 
vention of vice and immorality, shall be made and 
constantly kept in force ; and provision shall be 
made for their due execution ; and all religious 
societies or bodies of men, that have or may be 
hereafter united and incorporated, for the advance- 
ment of religion and learning, or for other pious 
and charitable purposes, shall be encouraged and 
protected in the enjoyment of the privileges, im- 
munities and estates which they, in justice, ought 
to enjoy, under such regulations, as the General 
Assembly of this State shall direct. 

SECTION XLir* 

All field and staff officers, and commissioned of- 
ficers of the army, and all general officers of the 
miUtia, shall be chosen by the General Assembly. 

SECTION XLIII. 

The declaration of rights is hereby declared to 
be a part of the Constitution of this State, and 
ought never to be violated, on any pretence what- 
soever. 

SECTION XLIV. 

In order that the freedom of this Commonwealth 



THOMAS CHITTENDEN. 49 

may be preserved inviolate, forever, there shall be 
chosen, by ballot, by the freemen of this State, 
on the last Wednesday in March, in the year one 
thousand seven hundred and eighty-five, and on 
the last Wednesday in March, in every seven 
years thereafter, thirteen persons, who shall be 
chosen in the same manner the council is chosen 
— except they shall not be chosen out of the 
Council or General Assembly — to be called the 
Council of Censors ; "who shall meet together, 
on the first Wednesday of June next ensuing 
their election ; the majority of whom shall be a 
quorum in every case, except as to calling a Con- 
vention, in which two thirds of the whole number 
elected shall agree ; and whose duty it shall be to 
enquire whether the constitution has been pre- 
served inviolate, in every part; and whether the 
legislative and executive branches of government 
have performed their duty as guardians of the peo- 
ple ; or assumed to themselves, or exercised, oth- 
er or greater powers, than they are entitled to by 
the constitution. They are also to enquire wheth- 
er the public taxes have been justly laid and col- 
lected, m all parts of this Commonwealth — in what 
manner the public monies have been disposed of, 
and whether the laws have been duly executed. 
For these purposes they shall have power to send 
for persons, papers and records : they shall have 
authority to pass public censures — to order im- 
peachments, and to recommend to the legislature 
the repealing such laws as appear to them to have 
been enacted contrary to the principles of the 
constitution. These powers they shall continue to- 
7 



50 MEMOIR OP 

have, for and during the space of one year from 
the day of their election, and no longer. The said 
Council of Censors shall also have the power to 
call a Convention, to meet "within two years after 
their sitting, if there appears to them an absolute 
necessity of amending any article of this consti- 
tution which may be defective — explaining such as 
may be thought not clearly expressed, and of ad- 
ding such as are necessary for the preservation of 
the rights and happiness of the people ; but the 
articles to be amended, and the amendments pro- 
posed, and such articles as are proposed to be ad- 
ded or abolished, shall be promulgated at least 
six months before the day appointed for the elec- 
tion of such convention, for the previous consid- 
eration of the people, that they may have an op- 
portunity of instructing their delegates on the 
subject. . 



THOMAS CHITTENDEN. 51 



CHAPTER III. 

Congress recommends to the several States to form ^i^overn- 
ments for themselves— Formation of the first Constitntions 
ot New Hampshire and Pennsylvania — The first Constitu- 
tions of the different States, varied as their Colonial Gov- 
ernments had varied — Extracts from the charter of Gov. 
Penn — History of the first Constitution of Pennsylvania 
and the formation of a new Constitntiou. 

Before we proceed to a protracted examination 
of the Constitution of Vermont, it cannot be out 
of place to refer briefly to the formation of 
Constitutions by the United American Colonies. 
"When they had successfully resisted the authority 
of the British crown, and overthrown the coloni- 
ial governments, all of them, except Connecticut 
and Rhode Island, who had imder their charters 
elected all their public functionaries, were destitute 
of any organized civil governments, and Congress 
recommended to the different colonies to frame, 
each £or itself, such form of civil government as the 
people should judge would be most conducive to 
their happiness. In pursuance of this resolution, 
the people of New Hampshire, on the 5th day of 
January, 1776, formed a Constitution of civil gov- 
ernment. This was not only the first Constitution 
formed by any of the colonies, but the first writ- 



62 * MEMOIR OF 

ten Constitution of civil government formed by 
any people, unless the compact signed by our Pil- 
grim Pathers on board the May .Flower may be 
considered as a written Constitution of civil gov- 
ernment. 

The reader will be prepared to find this Consti- 
tution very defective. It was such as the colo- 
nial government under which they had lived in- 
duced them to form. Under their colonial char- 
ter, the Governor had been 'appointed by the 
crown, who had a negative upon all acts of the 
Legislature, and by the exercise of the veto pow- 
er both he and his office had become so odious to 
the people that they could not endure a governor, 
although elected by themselves, and as they con- 
sidered the Constitution which they were forming 
to be but temporary, to continue only until a re- 
conciliation with the mother country should take 
place, they bestowed so little attention upon it that 
they provided no substitute for the Governor — ■ 
they instituted no executive department. 

But when the government was organized, it was 
found that Mesheck Weare, the President of the 
Council, was the highest officer in the government, 
and he acted as Executive during the revolution- 
ary war. And yet, imperfect as the Constitution 



THOMAS CHITTENDEN. 53 

was in other respects, the Legislature being divid- 
ed into two co-ordinate branches, a House of Rep ' 
resentatives and a Council, it carried them through 
the revolutionary war, and down to the year 1792, 
when a new Constitution was adopted, which has 
continued to this day without any amendment or 
attempt to amend it. 

In every other State except Pennsylvania, the 
Legislature was divided by the Constitution or 
charter, and consisted of a House of Eepresenta- 
tives and a Senate, or Council. In that State, as 
we have seen, supreme legislative power was vest- 
ed in a House of Representatives. 

The great body of the inhabitants of the colo- 
ny of Pennsylvania, at the commencement of the 
revolutionary war, had been born and lived under 
their proprietary. Gov. Penn, enjoying such priv- 
ileges as he had been pleased to grant them. It 
would be desirable to give the charter of Gov. 
Penn in full, estabhshinga frame of government, 
that the reader might judge for himself, what views 
the people of that colony entertained, and what 
habits of thinking in relation to government they 
had acquired, and what sort of government such 
a people would probably form for themselves, and 
thus be able to account for the formation and a- 



54 MEMOIR OF 

doption of the first Constitution of Pennsylvania, 
so essentially different from the Constitutions of all 
the other States ; and, I may add, so much more de- 
fective ; but it would occupy too much space, and 
I will only givie the following extracts from the 
charter of Gov. Penn. 



THE FRAME OF THE GOVERNMENT OF THE 
PROVINCE OF PENNSYLVANIA, IN AMERICA. 

TO all people, to whom these presents shall 
come. Whereas, King Charles the second, by 
his letters patents, under the great seal of Eng- 
land^ for the consideration therein mentioned, hath 
been graciously pleased to give and grant unto 
me William Penn (by the name of William 
Penn, Esquire, son and heir of sir William Penn 
deceased) and to my heirs and assigns forever, 
all that tract of land, or province, called Penn- 
sylvania, in America, with divers great powers, 
preeminences, royalties, jurisdictions, and author- 
ities, necessary for the well-being and government 
thereof: Now know ye, that for the well-being 
and government of the said province, and for the 
encouragement of all the freemen and planters, 
that may be therein concerned, in pursuance of 
the powers aforementioned, I, the said Wilham 
Penn, have declared, granted, and confirmed, and 
by these presents, for me, my heirs and assigns, 
do declare, grant, and confirm unto all the free- 
men, planters and adventurers of, in and to the 
said province, these liberties, franchises and prop- 



THOMAS CSITTENBEK. 55- 

erties, to be held, enjoyed and kept by the free- 
men, planters and inhabitants of the said province 
of Pennsylvania for ever. 

Imprimis^ That the government of this prov- 
ince shall, according to the powers of the patent, 
consist of the Governor and freemen of the said 
province, in form of a provincial council, and gen- 
eral assembly, by whom all laws shall be made, 
officers chosen, and public afiairs transacted, as is 
hereafter respectively declared, that is to say — 

II. That the freemen of the said province shall, 
on the twentieth day of the twelfth month, which 
shall be in this present year, one thousand six 
hundred eighty and two, meet and assemble in 
some fit place, of which timely notice shall be be- 
fore hand given by the governor or his deputy ; 
and then and there, shall choose out of themselves 
seventy-two persons of most note for their wisdom, 
virtue and ability, who shall meet, on the tenth 
day of the first month next ensuing, and always 
be called, and act as, the provincial council of the 
said province. 

III. That at the first choice of such provincial 
council, one -third part of the said provincial coun- 
cil shall be chosen to serve for three years then 
next ensuing ; one third part, for two years then 
next ensuing ; and one-third part, for one year 
then next ensuing such election, and no longer ; 
and that the said third part shall go out accord- 
ingly : and on the twentieth day of the twelfth 
month, as aforesaid, yearly for ever afterwards, 
the freemen of the said province shall, in like 
manner^ meet and assemble together, and then 



66 MEMOIR OF 

choose twenty-four persons, being one third of the 
said number, to serve in provincial council for 
three years ; it being intended, that one-third part 
of the whole provincial council (always consisting, 
and to consist, of seventy-two persons as afore- 
said) falling off yearly, it shall be yearly sup- 
pHed, by such new yearly elections, as aforesaid ; 
and that no one person shall continue there- 
in longer than three years : and, in case any 
member shall decease before the last election dur- 
ing his time, that then at the next election ensu- 
ing his decease, another shall be chosen to supply 
his place, for the remaining time, he was to have 
served, and no longer. 

IV. That, after the first seven years, every 
one of the said third parts, that goeth yearly off, 
shall be uncapable of being chosen again for one 
■whole year following : that so all may be fitted 
for government, and have experience of the care 
and burden of it. 

y. That the provincial council, in all cases and 
matters of moment, as their arguing upon bills to 
be passed into laws, erecting courts of justice, 
giving judgment upon criminals impeached, and 
choice of officers, in such manner as is hereinafter 
mentioned ; not less than two-thirds of the whole 
provincial council shall make a quorum ; and that 
the consent and approbation of two-thirds of such 
quorimi shall be had in all such cases and matters 
of moment. And moreover that, in all cases and 
matters of lesser moment, twenty-four members 
of the said provincial council shall make a quoruMy 
the majority of which twenty-four shall, and may, 



THOMAS CHITTENDEN. 57 

always determine in such cases and causes of les- 
ser moment. 

VI. That in this provincial council, the gover- 
nor, or his deputy, shall or may always preside, 
and have a treble voice ; and the said provincial 
council shall always continue, and sit upon its 
own adjournments and committees. 

VII. That the governor and provincial coun- 
cil shall prepare and propose to the general as- 
sembly, hereafter mentioned, all bills, which they 
shall, at any time, think fit to be passed into laws, 
within the said province ; which bills shall be pub- 
lished and affixed to the most noted places, in 
the inhabited parts thereof, thirty days before 
the meeting of the general assembly, in order to 
the passing them into laws, or rejecting of them, 
as the general assembly shall see meet. 

VIII. That the governor and provincial coun- 
cil shall take care, that all laws, statutes and or- 
dinances, which shall at any time be made within 
the said province, be duly and dihgently execu- 
ted. 

^IX. That the governor and provincial council 
shall, at all times, have the care of the peace and 
safety of the province, and that nothing be by 
any person attempted to the subversion of this 
frame of government. 

X. That the governor and provincial council 
shall, at all times, settle and order the situation of 
all cities, ports and market towns in every county, 
modelling therein all pubhc buildings, streets and 
market places, and shall appoint all necessary 
roads, and highways in the province.. 
8 



58 MEMOIR OF 

XI. That the governor and provincial council 
shall, at all times, have power to inspect the man- 
agement of the public treasury, and punish those 
who shall convert any part thereof to any other 
use, than what hath been agreed upon by the gov- 
ernor, provincial council and general assembly. 

XII. That the governor and provincial council 
shall erect and order all pubhc schools, and en- 
courage and reward the authors of useful sciences 
and laudable inventions in the said province. 

XIII. That, for the better management of the 
powers and trust aforesaid, the provincial council 
shall, from time to time, divide itself into four dis- 
tinct and proper committees, for the more easy 
administration of the affairs of the province, which 
divides the seventy-two into four eighteens, every 
one of which eighteen ^hall consist of six out of 
each of the three orders, or yearly elections, each 
of which shall have a distinct portion of business, 
as foUoweth : First^ a committee of plantations, to 
situate and settle cities, ports and market towns, 
and highways, and to hear and decide all suits 
and controversies relating to plantations. Sec- 
ondly ^ A committee of justice and safety, to se- 
cure the peace of the province, and punish the 
mal-administration of those who subvert justice, to 
the prejudice of the public, or private interest. 
Thirdly, A committee of trade and treasury, who 
shall regulate all trade and commerce, according 
to law, encourage manufacture and country growth, 
and defray the public charge of the province. 
And, Fourthly, A committee of manners, educa- 
tion and arts, that all wicked and scandalous liv- 



THOMAS CHITTENDEN. 59 

ing may be prevented, and that youtli may be suc- 
cessively trained up in virtue and useful knowledge 
and arts : the quorum of each of which commit- 
tees being six, that is, two out of each of the 
three orders, or yearly elections, as aforesaid, 
make a constant and standing council of tiventy- 
four^ which will have the power of the provincial 
council, being the quorum of it, in all cases not 
excepted in the fifth article ; and in the said com- 
mittees, and standing council of the province, the » 
governor, or his deputy, shall or may preside, as 
aforesaid ; and in the absence of the governor, or 
his deputy, if no one is by either of them ap- ^ 
pointed, the said committees or council shall ap- 
point a president for that time ; and what shall be 
resolved at such committees, shall be reported to 
the said council of the province, and shall be by 
them resolved and confirmed before the same shall 
be put in execution ; and that these respective 
committees shall not sit at one and the same time, 
except in cases of necessity. 

XIV. And, to the end that all laws prepared 
by the governor and provincial council aforesaid, 
may yet have the more full concurrence of the 
freemen of the province, it is declared, granted 
and confirmed, that at the time and place or places, 
for the choice of a provincial council, as aforesaid, 
the said freemen shall yearly choose members to 
serve in a general assembly, as their representa- 
tives, not exceeding two hundred persons, who 
shall yearly meet, on the twentieth day of the 
second month, which shall be in the year one thou- 
sand six hundred eighty and three following, in 



60 MEMOIR OF 

the capital town, or city, of the said province, 
where, during eight days, the several members 
may freely confer with one another ; and if any 
of them see meet, with a committee of the provin- 
cial council (consisting of three out of each of 
the four committees aforesaid, being twelve in all) 
which shall be, at that time, purposely appointed 
to receive from any of them proposals, for the al- 
terations or amendment of any of the said pro- 
posed and promulgated bills : and on the ninth 
day from their so meeting, the said general assem- 
bly, after reading over the proposed bills by the 
clerk of the provincial council, and the occasions 
and motives for them being opened by the govern- 
or or his deputy, shall give their affirmative or 
negative, which to them seemeth best, in such 
manner as herein after is expressed. But not 
less than two-thirds shall make a quorum in the 
passing of laws, and choice of such officers as are 
by them to be chosen. 

XY. That the laws so prepared and proposed, 
as aforesaid, that are assented to by the general 
assembly, shall be enrolled as laws of the province, 
with this style : By the. governor, with the assent 
and approbation of the freemen in provincial 
council and general assembly. 

XVI. That for the estabHshment of the gov- 
ernment and laws of this province, and to the end 
there may be an universal satisfaction in laying of 
the fundamentals thereof ; the general assembly 
shall, or may for the first year, consist of all the 
freemen of and in the said province ; and ever 
after it shall be yearly chosen, as aforesaid ; which 



THOMAS CHITTENDEN. 61 

number of two hundred shall be enlarged as the 
country shall increase in people, so as it do not 
exceed five hundred, at any time ; the appointment 
and proportioning of which, as also the laying and 
methodizing of the choice of the provincial coun- 
cil and general assembly, in future times, most 
equally to the divisions of the hundreds and coun- 
ties, which the country shall hereafter be divided 
into, shall be in the power of the provincial coun- 
cil to propose, and the general assembly to resolve. 

XVII. That the governor and provincial coun- 
cil shall erect, from time to time, standing courts 
of justice, in such places and number as they shall 
judge convenient for the good government of the 
said province. And that the provincial council 
shall, on the thirteenth day of the first month, 
yearly, elect and present to the Governor, or his 
deputy, a double number of persons to serve for 
judges, treasurers, masters of rolls, within the 
said province, for the year next ensuing ; and the 
freemen of the said province, in the county courts, 
when they shall be erected, and till then, in the 
general assembly, shall, on the three and twenti- 
eth day of the second month, yearly, elect and 
present to the governor, or his deputy, a double 
number of persons, to serve for sheriffs, justices 
of the peace, and coroners, for the year next en- 
suing ; out of which respective elections and pre- 
sentments, the governor or his deputy shall nom- 
inate and commissionate the proper number for 
each office, the third day after the said present- 
ments, or else the first named in such presentment. 



62 MEMOIR OF 

for each office, shall stand and serve for that office 
the year ensuing. 

XVIII. But forasmuch as the present condi- 
tion of the province requires some immediate set- 
tlement, and admits not of so quick a revolution 
of officers ; and to the end the said province may, 
with all convenient speed, be well ordered and 
settled, I, William Pemi, do therefore think fit 
to nominate and appoint such persons for judges, 
treasurers, masters of the rolls, sheriffs, justices 
of the peace, and coroners, as are most fitly 
qualified for those employments ; to whom I shall 
make and grant commissions for the said offices, 
respectfully, to hold to them, to whom the same 
shall be granted, for so long time as every such 
person shall well behave himself in the office, or 
place to him respectively granted, and no longer. 
And upon the decease or displacing of any of the 
the said officers, the succeeding officer or officers 
shall be chosen as aforesaid. 

XIX. That the general assembly shall contin- 
ue so long as may be needful to impeach crimin- 
als, fit to be there impeached, to pass bills into 
laws, that they may think fit to pass into laws, and 
till such time as the governor and provincial 
council shall declare that they have nothing fur- 
ther to propose unto them, for their assent and 
approbation : and that declaration shall be a dis- 
miss to the general assembly for that time ; which 
general assembly shall be, notwithstanding, capa- 
ble of assembhng together upon the summons of 
the provincial council, at any time during that 



THOMAS CHITTENDEN. 63 

year, if the said provincial council shall see oc- 
casion for their so assembling. 

XX. That all the elections of members, or 
representatives of the people, to serve in provin- 
cial council and general assembly, and all ques- 
tions to be determined bjboth, or either of them, 
that relate to passing of bills into laws, to the 
choice of officers, to impeachments by the gener- 
al assembly, and judgment of criminals upon such 
impeachments by the provincial council, and to 
all other cases by them respectively judged of 
importance, shall be resolved and determined by 
the ballot ; and unless on sudden and indispensa- 
ble occasions, no business in provincial council, or 
its respective committees, shall be finally deter- 
mined the same day that it is moved. 

XXI. That, at all times, when, and so often 
as it shall happen that the governor shall, or may, 
be an infant, under the age of one and twenty 
years, and no guardians, or commissioners, are 
appointed, in writing, by the father of the said in- 
fant, or that such guardians or commissioners 
shall be deceased ; that during such minority, 
the provincial council shall, from time to time, as 
they shall see meet, constitute and appoint guar- 
dians, or commissioners, not exceeding three ; one 
of which three shall preside as deputy, and chief 
guardian, during such minority, and shall have 
and execute, with the consent of the other two, 
all the power of a governor, in all the public af- 
fairs and concerns of the said province. 

XXII. That, as often as any day of the month 
mentioned in any article of this charter, shall fall 



64 MEMOIR OF 

Upon the first day of the week, commonly called 
the LorcVs I>ai/, the business of that day shall 
be deferred till the next day, unless in case of e- 
mergency. 

XXIII. That no act, law, or ordinance what- 
soever, shall at any time, hereafter, be made or 
done by the governor of this province, his heirs 
or assigns, to alter, change, or diminish the form 
or effect of this charter, or any part or clause 
thereof, or contrary to the true intent and mean- 
ing thereof, without the consent of the governor, 
his heirs or assigns, and six parts of seven of the 
said freeemen in provincial council and general 
assembly. 

XXIV. And lastly, that I, the said William 
Pemi, for myself, my heirs and assigns, have sol- 
emnly declared, granted and confirmed, and do 
hereby solemnly declare, grant and confirm, that 
neither I, nor my heirs nor assigns, shall procure 
or do any thing or things, whereby the liberties, 
in this charter contained and expressed, shall be 
infringed or broken ; and if any thing be pro- 
cured by any person or persons contrary to these 
premises, it shall be held of no force or effect. 
In witness whereof, I, the said William Penn, 
have unto this present charter of liberties set my 
hand and broad seal, this five and twentieth day 
of the second month, vulgarly called April, in 
the year of our Lord one thousand six hundred 
and eighty two. 

WILLIAM PENN. 



'THOMAS CHITTENDEN. G5 

The people of Pennsylvania lived under tliig 
government from the year 1683 to the year 1776. 
Most of the inhabitants, at the latter period, were 
born under this government, and the mass of the 
peoi)le could not have had the least knowledge of 
any other government, and so sensibly did they 
feel the evils of their own, from the exorbitant 
power of the Governor, and the want of power in 
the General Assembly, composed of their own 
representatives, that they thought of nothing but 
the removal of these evils. Such is human na- 
ture. When we experience inconveniences in our 
present situation, we become men of one idea, and 
can think of nothing but a change of our condi- 
tion, until we learn from better experience, that a 
change is not always an improvement. So it was 
with the people of Pennsylvania, in forming their 
first constitution. Like the people of New Hamp- 
shire, they had imbibed so strong a prejudice a- 
gainst the Governor imposed upon them by the 
Crown, that they could not think of a Governor 
elected by themselves, as an Executive Magistrate, 
but vested the whole executive power in an Exec- 
utive Council, and vested supreme Legislative 
power in a House of Representatives, without any 
check upon it. Such is human nature every- 
9 



66 MEMOIR OF 

■where. In France, the House of Peers had be- 
come so odious bj the repeated refusal to concur 
with the Assembly in carrying out the wishes of 
the people, as expressed by their representatives, 
that they thought of nothing but the removal of 
this evil, and they vested the legislative power of 
the Republic in the Assembly, consisting of 900 
members, without any other branch of the Legis- 
lature, to prevent them from passing such laws as 
the people desired. 

The following provision in the charter of Gov- 
ernor Penn, the people had been pleased with : — 
" All bills which the Governor and Council shall 
prepare to lay before the Assembly, shall be post- 
ed up and published thirty days before the meet- 
ing of the Assembly." There was no inconveni- 
ence arising from this provision ; it caused no de- 
lay in legislation ; and the people were gratified 
to know what bills their representatives would be 
permitted to pass at the next session. This was 
the origin of the provision in the Constitution of 
Pennsylvania, and in the first Constitution of Ver- 
mont, '' that all bills of a public nature shall be 
printed for the consideration of the people, and 
shall not be passed into laws before the next ses- 
sion of the Assembly." This provision produced 



THOMAS CHITTENDEN. t>7 

great inconvenience in both States, and w^s evad- 
ed by making all public acts temporary, to contin- 
ue in force till the next session, and were reviewed 
from year to year. 

There was a powerful opposition to this Consti- 
tution, at the time it was adopted, and an in- 
creasing dissatisfaction with it, during its continu- 
ance. In the year 1777, the next year after the 
Constitution was adopted, the Legislature passed 
a resolution, referring to the people the question 
whether a Convention should be called to amend 
it. In the year 1778, the Legislature passed a 
like resolution, but these resolutions were not car- 
ried into elSect, and in the year 1779, they were 
rescinded, on the petition of more than thirteen 
thousand citizens. 

At the end of the first septenary, a Council 
of Censors was elected, agreeably to the provisions 
of the Constitution. When the Council metj they 
appointed a Committee to enquire whether the 
Constitutioii had been preserved inviolate in every 
part, and whether the Executive and Legislative 
branches of the government had performed their 
duties as guardians of the people, &c. The com- 
mittee reported that they found multiplied in- 
stances of a departure from the frame of govern- 



68 MEMOIR OF 

ment, closing -with the following : " At the third 
session of the present Assembly, a law was passed 
to vest in Isaac Austin a real estate in Philadel- 
phia, claimed and possessed by George A. Baker, 
as his freehold." This extraordinary act of As- 
sembly, moreover, commanded the Sheriff to put 
Mr. Austin in possession. 

The Council also appointed a Committee, to re- 
port the articles of the Constitution which are de- 
fective and require amendment. This Committee 
reported an entire new frame of government. 
They divided the Legislature into two co-ordinate 
branches ; provided for the election of a Govern- 
or by the people, in whom they vested the ap- 
pointment and removal from office, and gave him 
a qualified negative upon all acts passed by the 
two Houses ; the judges of the Supreme Court to 
hold their offices during good behavior ; and they 
abolished the article providing for a Council of 
Censors, and provided no substitute. 

The report was accepted by a vote of 12 to 9, 
but as a vote of two-thirds of the Council was re- 
quired to call a convention, the people were de- 
prived of the privilege of deciding the question, 
upon which the Council were divided. On the 
-21st of January, the Council, by a vote of 12 to 



THOMAS CHITTENDEN. G9 

10, made the following address to the people, and 
adjourned to the first Tuesday of June following, 
hoping they should then be able to call a Conven- 
tion. 

ADDRESS. 

Friends and fellow citizens, 

Agreeably to the trust reposed in us, 
we have met and seriously deliberated upon those 
matters submitted to our consideration, by the 
constitution of this state. 

The most weighty subject that has come before 
us, is the constitution itself. To that, therefore, 
whilst we have not neglected the others, we 
have principally directed our attention. We 
have examined it with candor ; we have compar- 
ed it with the constitutions of other states ; we 
have discovered some of its defects ; we have sug- 
gested the necessity of abolishing such parts of it 
as are expensive and burthfensome, and dangerous 
to your liberties, and have with great deference 
thrown out, for your consideration, such altera- 
tions as appear to us to be best calculated to se- 
cure to you the blessings of free and equal gov- 
ernment. 

By the report of your committee which accom- 
panies this address, you will perceive that though 
the majority of this council approve of the alter- 
ations, considering them essential to your exis- 
tence as a free people, it has not yet met with the 
concurrence of two-thirds of our whole number, 



70 MEMOIR OF 

which the constitution has made necessary to ena- 
ble us to call a convention. We are strangers to 
the motives of the minoritj,for refusing to give you 
an opportunity to judge upon a matter, you and 
•we, and all our posterity are so deeply interested 
in, while by their silence upon the subject of the 
report, they have confessed that the constitution 
wants amendment. By refusing to indulge you in 
a convention for that purpose, they hold up conse- 
quences from that meeting that are dishonorable 
to freemen. They have indeed had the power to 
prevent it for the present, in the manner pointed 
out by the constitution : — But their sullen no in 
this council cannot rob you of your birth-right. 

Is it that they were concerned in the framing 
of the constitution, and therefore cannot bear that 
any fault should be found with it ? This fondness 
for the productions of the brain, is a weakness 
mankind is subject to. But in so momentous a 
concern, passion and prejudice should, as far as 
human nature is capable of it, be laid aside, and 
the arguments offered, weighed with that cool de- 
liberation the subject deserves. Nor can it be in 
any case, much less in the intricate science of gov- 
ernment, upon which so few have had either leis- 
ure or opportunity to turn their thoughts, an im- 
peachment of any man's judgment, to say he is 
mistaken. If errors then have crept in, they 
ought to be corrected ; if there are ambiguities, 
they should be explained, and if the system itself 
is wrong it should be altered. 

One cannot hesitate a moment in declaring that 
all these were naturally to be expected from the 



THOMAS CHITTENDEN. 71 

time and circumstances under wliicli the present 
constitution was formed. Our political knowledge 
was in its infancy. The passions of the state were 
unusually agitated. A large body of militia were 
busy in preparing to march to another state to op- 
pose the progress of the British army. Another 
body of citizens to the amount of five thousand 
were absent, on the same service, in the continent- 
al army. Amidst the din of arms and the dread 
of invasion, and when many wise and able men 
were necessarily absent, whose advice and assist- 
ance would have been of great use, was it reason- 
able to expect that a constitution could be formed 
proper for a great and growing state ? And if an 
improper one was formed, which is our decided 
opinion, shall it not be altered or amended ? 

Let it not be said, that the constitution has car- 
ried us triumphantly through a perilous war ; this 
is far from being the case. We owe all the ex- 
ertions of Pennsylvania to the virtue of the peo- 
ple. In times of danger, it is well known, the 
constitution forsook us, and the will of our rulers 
became the only law. It is well known, likewise, 
that a great part of the citizens of Pennsylvania, 
from a perfect conviction that political liberty 
could never long exist under such a frame of gov- 
ernment, were opposed to the establishment of it, 
and that when they did submit to it, a solemn en- 
gagement was entered into by its then friends, 
that after seven years should be expired, and the 
enemy driven from our coasts, they would concur 
with them ui making the wished for amendments. 
The seven years have elapsed, and our country 



72 MEMOIR OF 

now enjoys a peace, favorable to the most temper* 
ate deliberations on the subject of government ; 
but a minority in this council, which, by the absur- 
dity of its constitution, can in this instance bind 
the majority, say it is unnecessary. ^ We appeal 
to your common sense, .whether such a conduct is 
calculated to restore order and mutual confidence. 
It may be proper here to remark, that this very 
minority, although near one half of the members 
present in this council, do not represent one third 
of you ; so that the voice of more than two-thirds 
of the people, if the majority speak your sense, 
is sunk entirely ; and, contrary to all principles, 
the lesser number binds the greater. What do 
these men fear from a convention ? are they a- 
fraid to trust you with the exercise of the inesti- 
mable power of choosing a government for your- 
selves ? You cannot, you will not injure your- 
selves in this business. If the constitution in its 
present form is most agreeable, you have only to 
instruct your representatives in the convention to 
adopt it in all its parts. You are the sovereigns 
of Pennsylvania. All the power of the state is 
derived from your votes. Nothing can be oblig-' 
atory on you which is contrary to your inclina- 
tions, or repugnant to your happiness. We do 
not quote any part of the bill of rights to prove 
to you that you may call a convention, when and 
in what manner you please. This privilege is 
your birth-right and no power on earth can de- 
prive you of it. We appeal to you, therefore, to 
decide the great question, whether Pennsylvania 
shall continue unhappy and distracted under her 



THOMAS CHITTENBEN. 73 

present constitution, or -whether by caUing a con- 
vention, and amending it, you will restore har- 
mony amongst yourselves and dignity to your 
Government. 

We recommend to your serious consideration, 
the report of our committee, which has been adop- 
ted by this council and has become one of its acts. 
Weigh the reasons upon which it is founded with 
coolness and deliberation, and suffer not your- 
selves to be imposed upon, or your passions infla- 
med by artful men, or by words without meaning. 
'We can have no interest separate from yours; 
and as to. our political principles, when you rec- 
ollect that all have been the constant opposers of 
our British foes, and most of us have risked our 
lives and fortunes, during the whole of the con- 
test, you can entertain no doubt about them. The 
proposed alterations are not experiments, but are 
founded on reason and the experience of our sis- 
ter states. The future welfare of your country 
is in your own hands. If you give her a good 
government she will be great and free. If you 
mistake in this point, the die will be cast, and you 
are saeled up to insignificance or misery. 

We have not the most distant prospect, that the 
gentlemen in the minority will concur in calling a 
convention to amend the constitution, which we 
have thought, we hope not improperly, the most 
important part of our business ; and it is that you 
might have an opportunity to instruct them on 
that subject, that we have at present suspended 
our deliberations. 

10 



74 MEMOIR OF 

At the adjourned session of the Council, in 
June, their table was loaded "with remonstrances 
against calling a convention, signed by more than 
ten thousand citizens. By this it was seen that 
it would be utterly useless to call a convention, if 
the required majority of the Council should assent 
to it, and no further attention was paid to the 
subject. 

It appears by the journals of the Council, and 
by the history of those times, that the people 
were very highly excited, that party spirit never 
produced a more bitter animosity, between cou' 
tending parties. 

And the leading men, who were deeply impress- 
ed with the necessity of amending the Constitu- 
tion to secure the people in the enjoyment of their 
rights, abandoned the contest, hoping the excite- 
ment would subside, and the people be enabled calm- 
ly to survey their situation, and form a deliberate 
judgement in the case. They thought the storm had 
come to its height, and, as it was supposed no fur^ 
ther attempts could be made to amend the Con- 
stitution, until the end of the Septenary which 
had then just commenced, and so nothing left 
as a subject of contention, they lioped, that not 
only would the storm abate, but th^ swells of pop- 



THOMAS CHITTENDEN. 75 

ular passion Avliolly subside, and, as we shall see, 
thej were not disappointed. 

On the 24th day of March, 1T89, the Legisla 
ture passed a resolution, by a vote of 41 to 17, 
referring to the people the question whether a con- 
vention should be called to amend the Constitu- 
tion. This resolution was opposed on the ground 
that the Constitution, having provided a mode of 
amending it, it would be a violation of that in- 
strument to pursue any other mode. It was an- 
swered, that although the Legislature cannot call 
a convention to amend the Constitution, that pow- 
er being vested in the Council of Censors exclu- 
sively, yet, as the people are the source of all po- 
litical power, the Legislature may refer to them 
the question, whether a convention shall be called, 
and this opinion prevailed. 

When the Colonies formed their first Constitu- 
,tions, they made a declaration of the right of self- 
government, as the foundation of all their pro- 
ceedings, but it does not appear that the question 
ever occurred to them whether this right must al- 
ways exist, or might be suspended by the people 
themselves. But this question was presented to 
the people of Pennsylvania, and they decided it. 
And in framing their new Constitution, they al- 



76 MEMOIR OF 

tered the declaration of the right of self-govern- 
ment, and made it read as follows : " That all 
power is inherent in the people, and all free gov- 
ernments are founded on their authority, and in- 
stituted for their peace, safety and happiness. 
For the advancement of these ends they have at 
all times an inalieniable and indefeasible right to 
reform or abolish their form of government, in 
such manner as they may thinK proper." This 
declaration is found in most of the Constitutions, 
subsequently adopted. 

If this be not a correct declaration of the right 
of self-government, if the people can make their 
constitution unalterable for seven years, it will be a 
mere question of expediency whether it shall be 
seven or seven hundred. It is difficult to raise 
any solid objection to this mode of proceeding by 
the people of Pennsylvania, in amending their 
constitution. There was no opposition to the ex- . 
isting government, no attempt to overthrow it, — 
on the contrary, every step was taken by and 
through its organs. There is certainly no analo- 
gy between this mode of proceeding, and the mode 
of proceeding in Rhode Island. In that State, a 
portion of the people combined to form a new con- 
stitution, in opposition to the existing government, 



THOMAS CIirTTENDEN. 77 

to overthrow it and establish a new government 
in its place. 

To admit such a mode of proceeding would sap 
the foundation of our free institutions — to provide 
for it in a constitution of civil government, would 
be to provide for its own destruction. 

But the people of Rhode Island were in a pe- 
culiar situation. By the charter of Charles IT., 
the Governor and Company were authorized to 
admit such and so many persons free of the cor- 
poration as they should see fit. And as was nat- 
ural in their then situation, they made all free- 
holders free of the corporation, all others were 
deprived of the right of suffrage. For many 
years after this, almost all the inhabitants of the 
Colony were free-holders, and until after the close 
of the Bevolutionary War, so small a portion of 
the people were deprived of the right of suffrage 
by this property qualification, but little complaint 
was heard. But after a course of years, by rea- 
son of a great increase of Commerce and Manu- 
factures, it became a question whether more or 
less than half of the inhabitants were deprived of 
the right of suffrage . And as the number of those 
who were deprived of their political rights increa- 
sed, their complaints become louder and louder, 



78 MEMOIR OF 

and were threatening ; but the free holders, who 
held the whole power of government m their 
hands, refused to listen to their complaints. At 
length, the free holders, the law and order party 
as they were now called, finding it necessary to 
yield to the public sentimentj adopted a constitu- 
tion granting the right of suffrage to all except 
foreigners. To make them freemen a property 
qualification was required. To this, their oppo- 
nents, the Dorrites, as they were called, refused 
to accede, although they had obtained all which 
they had at first contended for, and attempted to 
overthrow the existing government and establish 
their own revolutionary constitution by force, but 
failed. 

Thus, in this case, as in most political contests, 
it was at first a contest for principles, but degen- 
erated into a contest for power. 

The Legislature of Pennsylvania at their ses- 
sion in September, 1789, finding that a majority 
of the people were in favor of a convention, passed 
a resolution calling a convention to amend the con- 
stitution, to meet on the 24th of November follow- 
ing. The convention met and continued their ses- 
sion till the 5th of February, 1790. The following 
distinguished jurists and statesmen were members 



THOMAS CHITTEXUKN. 79 

of this august body : James Wilson, James Rosi^, 
Albert Gallatin, Timo. Pickering, Ths. McKean, 
Wm. Lewis, Thomas Mifflin, and Alex. Addison. 

The people of Pennsj^lvania had suffered so 
much from the violent and tyrannical proceeding of 
their Legislature, and had witnessed so great an 
abuse of the power of appointment, vested in 
their Executive Council, that the reader will be 
prepared to find that, in framing their new con- 
stitution, the removal of these evils was a prima- 
ry object. They divided the Legislature, by con- 
stituting a Senate, the members to be elected for 
four years. They provided for an election of a 
Governor by the people, to hold his office for three 
years, and vested in him the power of appoint- 
ment and removal, without the advice and consent 
of a Senate or Council. The Judges of the Su- 
preme Court were to hold their office during good 
behavior. 

They provided no mode of amending the Con- 
stitution, preferring the mode they had pursued 
in amending it. They considered that as long as 
the people are satisfied with the Constitution, it 
should never be disturbed by any theoretical spec- 
ulations, and that whenever the people are dissat- 
isfied with it, this dissatisfaction will be represeiv 



so MEMOIR OF 

ted in the Legislature, and thej will refer the 
question to the people, whether a convention shall 
be called. 

It appears from the journals of the convention, 
that there was an unexampled degree of unanimity 
through their whole proceedings, and when they 
had gone through with the constitution, it was 
adopted with one dissentient. 

It also appears from the journals of the conven- 
Vention, that not one word was said in favor of 
the last section in the constitution, providing for 
a Council of Censors. 

The people manifested no dissatisfaction with 
this constitution, until the year 1825, when the 
Legislature passed an act referring to the people 
the question whether a convention should be call- 
ed, and they decided against it. 



TIIOMAP CHITTENDEN. 81 



CHAPTER IV. 

The first section in the Bill of Rights in the Constitution of 
Pennsylvania, so amended as to abolish slavery. — Act to 
prevent the transportation of negroes and mulattoes out of 
the State. — Second section in the Bill of Rights amended. 
— Ministerial acts. — Fifteentli section amended. 

We are now prepared for an examination of 
our first Constitution as established by the Con- 
vention. We shall at present call the attention 
of the reader to those few sections of our Consti- 
tution which were formed by making some addi- 
tions to certain sections of the constitution of 
Pennsylvania. The reader has seen that the fra- 
mers of our Constitution took the first Constitu- 
tion of Pennsylvania as a model, and that they 
made but very few additions to it, but their at- 
tention was arrested by the first section in the Bill 
of Rights. They were satisfied that it contained 
a declaration of all the natural rights of man, but 
they saw a portion of their fellow citizens deprived 
of every one of these rights, and they determined 
that those rights should be restored to them, and 
that they should be protected in the enjoyment 

of them by the Constitution. Pennsylvania had 

11 



S2 MEMOIR or 

onlj made a declaration of those riglits, and left 
it to the legislature to secure all classes in the en- 
joyment of them, and they did it. Some other 
states made the same declaration, but afterwards 
treated it as a perfect nullity, and it had no effect 
except as a proclamation to the world that when 
they stripped one class of their fellow beings of 
all their natural rights, they sinned against light 
and knowledge. But the framers of our Consti- 
tution, governed by the principles of the natural 
law, were of course consistent, and did their work 
thoroughly by making the following addition to 
the section : 

Therefore, no male person, born in this coun- 
try, or brought from over sea, ought to be holden 
by law, to serve any person, as a servant, slave or 
apprentice, after he arrives at the age of twenty- 
one years, nor female, in like manner, after she 
arrives at the age of eighteen years, unless they 
are bound by their own consent, after they ar- 
rive at such age, or bound by law, for the pay- 
ment of debts, damages, fines, costs, or the like. 

Every Vermonter has reason to be proud of 
this — his own State was the first to abolish Slavery 
by the Constitution. 

It has been said that tlie soil of Vermont was 
never polluted by Slavery, but this is a mis- 
take J there was Slavery in all the New-England 



THOMAS CHITTENDEX. S3 

Colonies, and some of the slaveholders moved m- 
to the Grants and brought their slaves with them. 
The follo^Ying act proves this, as well as the vigi- 
lance of the Legislature in protecting all classes 
of their fellow-citizens in the enjoyment of their 
natural and constitutional rights. 

An act to prevent the sale and transportation of 
.Negroes and Mulattoes out of this State. 

"Whereas, by the constitution of this State, all 
the subjects of this commomyealth, of whatever 
colour, are equally entitled to the inestimable 
blessings of freedom, unless they have forfeited 
the same by the commission of some crime ; and 
the idea of slavery is expressly and totally explo- 
ded from our free government ; 

And whereas, instances have happened of the 
former owners of Negro slaves in this common- 
wealth, making sale of such persons as slaves, not- 
withstanding their being liberated by the Consti- 
tution ; and attempts been made to transport such 
persons to foreign parts, in open violation of the 
laws of the land ; 

Be it therefore enacted^ ^e. that if any person 
shall, hereafter, make sale of any subject of this 
State, or shall convey, or attempt to convey, any 
subject out of this State, with intent to hold or 
sell such person as a slave ; every person so offen- 
ding, and convicted thereof, shall forfeit and pay 
to the persons injured, for such offence, the sum 
of one hundred pounds, and cost of suit ; to be 
recovered by action of debt, complaint, or infor- 
mation. 



S4 MEMOIR OF 

The second section of the Bill of Rights in the 
Constitution of Pennsylvania also arrested the at- 
tention of the framers of our Constitution. 

They had less confidence in that section because 
it came from that Quaker State, and because the 
Convention who framed tkat Constitution, sat and 
did business on the Sabbath as well as on week 
days. They were pleased with the section, as it 
contained a declaration of the right of religious 
liberty, the rights of conscience, but they were 
fearful that this religious liberty would be some- 
what larger than that to which the people of New- 
England had been accustomed. And they just- 
ly considered, that it was necessary to adapt the 
Constitution to the religious sentiments, habits and 
customs of the people of the State. 

In all the colonies of New-England, with the 
exception of Rhode Island, the towns had been 
authorized by the Colonial Legislatures to tax the 
inhabitants for building meeting-houses and the 
support of preaching. And as there was a ma- 
jority in the several towns of the Congregational 
order, the practical operation of the law was to 
empower that order to tax, and they did tax the 
minor sects to aid them in building their meeting- 
houses and supporting ministers. Laws had also 



THOMAS CHITTENDEN. 85 

been enacted end executed, to enforce a due ob- 
servation of the Sabbath. And as it was seen 
that the people were eminently religious, and it 
being admitted by all that none but a religious 
people could support our free institutions, they 
were fearful of any change in the laws for the 
support of religion* But the minds of men were 
at that time in a transition state, as to their views 
of religious liberty ; they had more enlarged and 
just views of it than their puritan fathers. 

The Puritans considered that reliG;ious liberty 
belonged only to the true church, and consisted 
in a power to punish hereticks and compel all to 
embrace the true religion. Entertaining these 
views they could not but think it right to tax 
them for the support of that rehgion. But the 
principle of liberty and equality which lies at the 
foundation of our free institutions, had wrou";ht a 
change in the minds of men respecting religious lib- 
erty, and the ecclesiastical government was becom- 
ing more analogous to the civil government. It 
has ever been so ; that strong propensity to analo- 
gy in man which is discovered in all departments 
of life has rendered ecclesiastical governments 
through the world analogous to civil governments. 
And these two governments generally, after some 



SQ MEMOIR OF 

contention for the sovreignty, have found it nec- 
essary to unite, to keep the people in subjection. 
Hence, the union of Church and State. 

The framcrs of our Constitution, having, as sug- 
gested, founded it on the equal rights of the citi- 
zens, and having pretty correct notions of religious 
liberty, had no idea of authoriaing the Legislature 
to tax the minor sects for the benefit of the stand- 
ing order, yet they considered that as all classes 
of the community had a common interest in the 
support of public worship, as they had in the sup- 
port of common schools, they ought to contribute 
in like manner for its support. 

And they authorized the Legislature to pass 
Laws to enforce the observation of the Sabbath, 
and to tax the people for the support of public 
worship, trusting that they would do it in such 
manner as to afibrd no just ground of complaint. 
They accordingly made the following addition to 
the Section: "'Nevertheless every sector denom- 
ination of peoj)le ought to observe the Sabbath or 
Lord^s day^ arid keej:^ %ip ayid siqjj^ort some sort 
of religious worship^ which to them shall seem 
most agreeable to the revealed will of God.'' 

The Legislature at their first session in March, 
1778- passed an act to enforce a due observation 



THOMAS CHITTENDEN. 87 

of the Sabbath, and at the October session in 
1781, an act was passed authorizing towns to lay 
taxes on the lands within their limits, for the pur- 
pose of building meeting-houses, shool-houses and 
bridges, but they passed no act authorizing 
towns to lay taxes upon their lists for the build- 
ing of meeting-houses and the support of minis- 
ters, until October 1783, when they passed an 
act entitled an act " enabling towns and parishes 
to erect proper houses for public worship, and 
support ministers of the gospel." The following 
is the preamble with extracts from the enacting 
part: 

An Act to enable Towns and Parishes, to erect 

proper Houses for public Yv^orship, and support 

Ministers of the Gospel. 

Whereas, it is of the greatest importance to the 
community at large, as well as to individuals, that 
the precepts of Christianity and rules of morality 
be publicly and statedly inculcated on the minds 
of the inhabitants. 

Therefore, 

Be it enacted^ ^"C. that whenever any town or 
parish shall think themselves sufficiently able to 
build a meeting-housG, or settle a minister, it shall 
be the duty of the town or parish clerk, on appli- 
cation of seven freeholders of such town or par- 
ish, to warn a town or society meeting, mention- 
ing the time, place, and matter to be debated ; 
giving twelve days notice, by posting the same at 



88 MEMOIR OF 

the most public place, or places, in said town or 
parish: and that two thirds of the inhabitants 
of such tow^n or parish, who shall meet agree- 
able to such w^arrant, being legal voters, and 
of similar sentiments with respect to the mode 
of worship, shall be hereby authorised to ap- 
point a place or places for the public worship, 
of God, and fix on a place or places for building 
a house or houses of worship, and vote a tax or 
taxes sufficient to defray the expense of such 
building or buildings ; and also to hire, or other- 
Avise agree with, a minister or ministers to preach 
in such tow^n or parish, either to supply such 
town or parish with preaching, or on probation 
for settlement ; and further to vote such minister 
or ministers such settlement or settlements in 
money, or otherwise, as to them shall seem equal ; 
and to vote such minister or ministers such annual 
support in money, or otherwise, (to be agreed on 
between such minister or ministers and people) 
as shall be found necessary ; to be assessed on the 
polls and rateable estates of persons living, or es- 
tates lying, within the limits of such town or 
parish. , 

Provided, no person shall be obliged to pay 
such tax or taxes, or any part thereof, or his es- 
tate taken therefor, who shall be hereafter descri- 
bed and exempted by this act. 

Provided also, that no vote shall be deemed 
legal and binding on such inhabitants as are not 
by law exempted as aforesaid, unless there shall 
be twenty -five legal voters in the affirmative. 

And if the inhabitants of any tow^n or parish 
shall agree to build a meeting-house or liouscs, 



THOMAS dllTTENDM. 80 

agreeable to the tenor of this act, but shall not 
agree on the place or places to build the same ; in 
that case it shall be the duty of the county court, 
at their sessions within the county where such 
difficulty may arise, at the request of not less 
than seven members, inhabitants of such town or 
parish, to appoint an indifferent committee at the 
discretion of the court, and cost of such town or 
parish, to view attentively such town or parish, 
and find out the most convenient place or places 
for such houses, and there set up a stake or 
stakes, and acquaint the clerk of such town ot 
parish therewith, who shall make a record there- 
of: and such committee shall report their doings 
to the court that appointed them ; which court 
shall examine said report, and if found to be just 
and equalj, shall establish the same. 

And whereas, there are in many towns and 
parishes within this State, men of different sen* 
timents in religious duties, which lead peaceable 
and moral lives, the rights of whose conscience 
this act is not to control ; and likewise some, 
perhaps, who pretend to differ from the majori- 
ty with a design only to escape taxation. 
Therefore, 

JBe it enacted, that every person or persons, 
being of adult age, shall be considered as being of 
opinion with the major part of the inhabitants 
within such town or parish where he, she or they 
shall dwell, until he, she or they shall bring a cer- 
tificate, signed by some minister of the gospel, 
deacon or elder, or the moderator in the church 
or congregation to which he> she or they pretend 

12 



90 MEMOIR OF 

to belong, being of a different persuasion ; ■v\4nch 
certificate shall set forth the party to be of their* 
persuasion; ai.d until such certificate shall be 
she^Yn to the cierk of such town or parish, (who 
shall record the same) such party shall be subject 
to pay all such charges with the major part, as by 
law shall bo assessed on his, her or their polls or 
rateable estate. 

Many towns taxed the inhabitants to raise mon- 
ey for building meeting-houses, settling and sup- 
porting ministers, agreeably to the provisions of 
the act. It was productive of great good ; the 
people in the different towns collected from vari- 
ous parts of New-England more readily united for 
the support of public worship in a mode to which 
they had been accustomed, than they would have 
done in any new mode. But in most of the towns 
tljere was a greater proportion of those belonging 
to the minor sects, ihan there were in the other 
New-England States, and an opposition to the 
Ministerial acfc was at once manifested. And 
this opposition naturally increased from year to 
year, until the year 1801, when the Legislature 
repealed the clause in the Ministerial Act, ena- 
bling any individual to obtain a certificate to ex- 
empt him from the payment of taxes, and enacted 
the foliOTYiiig as a substitute : 



THOMAS CHITTENDEN". 91 

That every person of ad alt age, being 

a legal voter in any town or parish, shall he 
considered as of the religious opinion and senti- 
ment of such society, as is mentioned in said act, 
and be liable to be taxed for the purposes men- 
tioned in said act, unless he shall, previous to any 
vote, authorized in and by said act, deliver to the 
clerk of said town or parish, a declaration in wri- 
ting, with his name thereto subscribed, in the fol- 
lowing Avords, to wit : 

" I do not agree in religious opinion, with a 
" majority of the inhabitants of this town." 

This, it was supposed, would remove all objec- 
tions and silence all complaints against the Minis- 
terial act, but it was soon found that the number 
of those opposed to the act was increasing. At 
every session of the Legislature, efforts were made 
to repeal the act, until the year 1807, when the 
Legislature repealed the offensive parts of it, di- 
vesting the towns of all power, to act or pass any 
vote for the building of meeting-houses or the sup- 
port of ministers, leaving every individual to de- 
cide for himself whether he would contribute any- 
thing for the promotion of those objects. It was 
well that this act waS continued so long under va- 
rious modifications. It has taught us a valuable 
lesson, that all laws must be made in the spirit of 
our free institutions, or they will be neither satis- 
factory, useful or permanent. 



92 MEMOIR OF 

It "was for some time supposed that the dissatis- 
faction of the people with the Ministerial act, arose 
from their objections to its details, and they were 
modified. But this appeared to have no other ef- 
fect than to increase the opposition to the act. 

And at length the people spoke to the Legisla- 
ture in a language which could not be misunder- 
stood, — we will not permit the Legislature to in- 
terfere in any manner with our religious concerns. 
When this act was repealed, great fears were en- 
tertained that the cause of religion would suffer, 
that public worship could not be supported without 
the aid of the law, that ministers would be driv- 
en from their profession for want of a support, but 
the condition of the clergy was improved by the 
repeal of the act. And now after the experience 
of more than forty years, it is evident that the 
time had arrived for setting aside that system of 
supporting public worship by taxation, which was 
adopted by our puritan fathers, and which was so 
necessary in that age for the support of a pious 
and learned clergy, and which had been so bene- 
ficial in the first settlement of this State. But 
useful as that system had been, while those in the 
minor sects were few in number, it proved other- 
"wise when their numbers had greatly increased. 



THOMAS CHITTENDEN. 93 

As none but the Congregationalists taxed tliem 
for the support of the gospel, they naturally imbi- 
bed a strong prejudice against that order, but 
since the cause has been removed, since all the 
christian sects have been placed on an equal foot- 
ing, that prejudice is wearing off, and there is a 
fair prospect that all the christian sects will treat 
each other in a true christian spirit. 

The next section in the Constitution of Penn- 
sylvania, which attracted attention was the 15th 
section in the frame of governmenii, which was a- 
mended and made the 16th section of our consti- 
tution. It has been seen that by the Constitution 
of Pennsylvania, the supreme legislative power 
was vested in \he Assembly, and the supreme ex- 
ecutive power was vested in the Governor and 
Council. The latter was vested with no legisla- 
tive power, nor had they the slightest connexion 

m 

with the Assembly in legislation. This was not 
satisfactory to the framers of our Constitution,and 
they so amended it, as to require all bills^of pubHc 
nature to be first laid before the Governor and 
Council for their perusal and proposals of amend- 
ment, before they should be read in General As- 
sembly for the last time of debate and amend- 
ment. 



94 MEMOIR OF 

This amendment, at first view, will appear to be 
of no importance, as it conferred on the Governor 
and Council no power in legislation, and yet in 
practice it proved to be of great importance, — it 
affected the whole course of legislation, rendering 
the Governor and Council nearly a co-ordinate 
branch of the legislature. 

No one who personally knew Gov. Chittenden, 
would hesitate to say that he was the author of 
this amendment, his sagacity and his experience 
enabled him to foresee the importance of it. He 
had been President of the Council of Safety from 
its first organization. He knew the men who com- 
posed that Council, and he foresaw that many of 
them would be members of the Council under the 
Constitution. He had also been a member of sev- 
eral Conventions, and was acquainted with the 
members, and knew that many of them would be 
members of the House of Representatives. And 
his good sense and experience taught him that 
they would need the advice and direction of the 
Governor and Council. And there is very little 
doubt that he contemplated the very mode of leg- 
islation which was pursued at the first session, as 
the result of this slight connexion between the 
two Houses in legislation. And that it would eu- 



THOMAS CHITTENDEN. 



95 



able the Governor and Council to exert an influ- 
ence upon the House of Representatives. Accor- 
dingly we find that at the first session, as all bills 
originating in the Assembly were to be laid before 
the Governor and Council for amendment, the as- 
sembly in several instances requested the Gover- 
nor and Council to lay bills before them, doubtless 
because they considered them more capable of 
drafting bills, and that it would save them the 
trouble of amending the bill if sent from the 
House. But another practice was introduced and 
continued through the Septennary of far greater 
importance. Whenever the Governor and Coun- 
cil proposed amendments to a bill from the House, 
and the House could not concur in the amend- 
ments, the two Houses joined in Grand Commit- 
tee to discuss the subject and report their opin- 
ion to the Assembly. And this mode of proceed^ 
ing was pursued, in all cases when any important 
subject was debated in the Assembly, they re 
quested the Governor and Council to join in grand 

Committee. 

Gov. Chittenden of course presided and usually 
took a leading part in the debate. He never 
made a set speech, but would seize on some prom- 
inent point, and by a few sensible and forcible 



06 MEMOIR OF 

remarks usually carried the Committee with liim. 

This mode of proceeding was pursued, and the 
two Houses went on harmoniously together, with- 
out any act directing the mode of passing laws, 
until February 1784, when an act was passed en- 
titled an act " directing the form of passing laws." 
This act established the mode of proceeding as 
above stated and limited, in which the Governor 
and Council should return to the Assembly all 
bills sent to them for amendment. 

I am aware that it must appear strange if 
not incredible to men of the present generation, 
that the House of Representatives, a body some-* 
what numerous, vested with supreme legislative 
power ,and the Governor and Council, a small body, 
vested with no power, yet sHghtly connected with 
the House in legislation, should have thus pro- 
ceeded harmoniously together. Yet it will ap- 
pear credible and natural, when we refer to the 
peculiar condition of the people of Vermont at 
that time, and to some of the peculiar views, sen- 
timents and habits of the men of that age. The 
inhabitants of the New-Hampshire Grants had 
been united, and had acted together in defence 
of their all, their farms and their independence as 
a people, not under an organized government, but 



THOMAS ciirrTENDE:^. 97 

hy a voluntary association of individuals. They 
constituted their Council of Safety, and their Sub- 
Committees of Safety, whose decrees had all the 
force of laws, and the members of the Council and 
of the Committees were treated with all the re- 
spect which they had been accustomed to pay to 
the magistrate. 

This state of things continued until the gov- 
ernment was organized under the Constitution. 
And as the common danger continued, the inde- 
pendence of Vermont not having been acknowledg- 
ed, all felt the necessity of acting in concert ; to act 
thus under their former system had become a hab- 
it so strong, that for some time after the govern- 
ment was organized, the Governor and Council 
exercised all the powers, that the Council of Safe- 
ty had exercised, that is, all the powers of govern- 
ment, legislative, executive and judicial. In this 
state of things, and for reasons which have alrea- 
dy been given, little attention was paid to the 
Constitution ; it had served to put the machine in 
motion, but served little purpose as a regulator ; 
reliance was wholly placed on a union of coun- 
cils, as it had before been, and many of the peo 
pie being influenced by the peculiar religious sen- 
timents and staid habits of the puritans, this iit- 

13 



98 MEMOIR OF 

ted tlicm for the condition in -wliich they were 
placed. To reverence the magistrate and to look 
to old men for counsel, was with them a religious 
duty. It was then natural for the House of Rep- 
resentatives composed of younger men, to look to 
their fathers and superior magistrates, the Gov- 
ernor and Council, for advice and direction. 



CHAPTER V. 

Ratification of the first Constitution of Vermont. — Acts of 
t lie Lesrislature makinir the Constitution a law of the IState. 
[Extracts from Yt. State Papers. — Address of the Council 
of Safety to the people. 

Having given a concise history of the Constitu- 
tion of Pennsylvania, we will now proceed to give 
a more particular history of our own Constitution, 
noting as we go along the additions that were 
made to the Constitution of Pennsylvania, in fra- 
ming the Constitution of Vermont. 

A question has been raised whether our Consti- 
tution was duly ratiified ; to prove that it was not, 
Gov. Slade makes the following note under the 
Constitution as published in Vermont State Papers, 
page 241. 

" It is worthy of remark, that this Constitution 
was never submitted to the people for their appro- 






THOMAS CUITTENDEN. ^ 9q 

bation. It is stated by Ira Allen, in his history 
of Vermont that the credentials of the members 
of the Convention, authorized them io form a Con- 
stitution, but were ^\\Qiiidi^ioii^ ratification; and 
that, owing to the unsettled state of public opin- 
ion, it was thought hazardous to submit it, direct- 
ly, to the decision of the people. It was, howev- 
er, silently submitted to, — not only because a 
government, organized under even a defective 
constitution, was esteemed preferable to the un- 
settled state of things which had so long existed, 
but because such organization seemed necessary 
to lay the foundation for a recognition of the sov- 
ereignty of Vermont, and her admission into the 
Union." 

At the session of the Legislature in 1779, an 

act was passed, entitled " An Act for securing 

general privileges of the people, and establishing 

common law and the constitution, as part of the 

laws of this State," and concluding as follows : 

Be it further enacted by the authority aforesaid, 
that the Constitution of this State, as established 
by general convention held at Windsor, July and 
December, 1777, together with, such alterations 
and additions as shall be made in such Constitu- 
tion, agreeable to the 44th section in the plan of 
government, shall be forever considered, held, 
and maintained, as part of the laws of this State. 

In June, 1782, an act was passed entitled an 

act establishing the Constitution, and securing the 

privileges of the people. By this act the forego- 



100 • MEMOIR OF 

ing section was enacted in the same "words. To 
the first of these acts, Gov. Slade appended the 
following note : 

'' The Constitution, if it was any thing, was, al- 
ready, the fundamental law of the State, possess- 
ing authority, necessarily paramount to any act 
of the legislature, — the very charter, indeed, of 
its existence, and by which alone, it was invested 
with power to legislate at all, — and yet we here 
find the legislature gravely attempting to give to 
this instrument the force of law P^ 

A recurrence to the history of the Constitution, 
will explain this singular proceeding. We have 
before suggested, that it was never sanctioned by 
the people, but went into operation as it came 
from the hands of the Convention, and was sub- 
mitted to, rather from necessity than choice. The 
truth of that suggestion is fully confirmed by this 
attempt to legalize the Constitution ; and we are 
irresistibly led to the conclusion, that it was con- 
sidered a mere nullity by the statesmen of that 
period." 

These constitutional principles stated by Gov. 
Slade are at this day known to all, and admitted 
by all, the learned and unlearned, but it does not 
follow, that the framers of our Constitution were 
governed by them or ever had an idea of them. 
Every one, who in an examination of the history 
of our Government, shall go back beyond the 
r^ach of his own memory will be exposed to simi- 
lar errors. 



THOMAS CHITTENDEN. , 101 

When we extend our researches back for a pe- 
riod of years, to learn the true history of a gov- 
ernment which has for ages been administered 
on the same principles, we are liable only to 
make some unimportant mistakes from a change 
in the language ; we may mistake the meaning of 
an act or the motives for passing it ; but our gov- 
ernment originated in a revolution, important, as 
it overthrew the authority of the Eritish Govern- 
ment and established our independence, but still 
more important as a revolution in civil govern- 
ment. 

For the first time since the existence of man, 
we find a people forming a written Constitution of 
civil government, founded on the great princi- 
ple, that all power is inherent in the people, and 
all free governments are founded on their author- 
ity. And in the exercise of their primitive sov- 
ereignty, the people parcelled out the powers of 
government, by constituting a Legislative, Exec- 
utive and Judicial department, limiting the powers 
of each. 

Now can we suppose, that the framers of this 
Constitution had a very accurate idea of the sys- 
tem which they had formed, — did they all at once 
become profound Constitutional lawyers ? In all 



102 MEMOIR OF 

governments wlilch had previously existed, tlie 
legislature, the law-making power, had been sove- 
reign, absolute and uncontrollable. Judge Black- 
stone says, " Legislation is the greatest act of su- 
periority that can be exercised by one being over 
another, wherefore it is requisite to the very 
essence of law, that it be made by the supreme 
power. Sovereignty and Legislation are, indeed, 
convertible terms. One cannot subsist without the 
other." This constitutional law, this omnipotence 
of the Legislature, the Colonists brought with 
them from the mother country, as they brought 
with them the common Law. And when they 
constituted the legislature, they considered that 
its power was necessarily supreme and uncontroll- 
able, and that all constitutional restrictions upon 
their power were merely directory. No idea was 
entertained that an act of the legislature, however 
repugnant to the Constitution, could be adjudged 
void and set aside by the judiciary, which was 
considered by all a subordinate department of the 
government. And these sentiments generally 
prevailed until after the Constitution of the Uni- 
ted States was promulgated. It was then seen 
that the people of the United States, in the exer- 
cise of their sovereignty, had formed a Constitution 



THOMAS CHITTENDEN. 103 

binding upon the whole United States, had re- 
stricted the powers of the State Legislature, had 
declared that Constitution to be the supreme law 
of the land, and had constituted a judicial tribunal 
to decide all questions arising under that Consti- 
tution. After tills, it was no longer possible to 
maintain the political heresy which had so long 
prevailed. It was now seen that a State Consti- 
tution, so far as it was not affected by the Conr 
stitution of the United States, was from its very 
nature, the supreme law of the State, without any 
declaration to that effect ; that all acts of the Leg- 
islature repugnant to the Constitution were void, 
and must be set aside by the Judiciary. 

That I have given a correct history of consti- 
tutional law at that early period, relative to the 
powers of the Legislature, the reader will be satis- 
fied by recurring to the Constitution and the pro- 
ceedings of the Council of Censors. It has been 
seen, that the second section in the frame of gov- 
ernment is in these words — '' the supreme legisla- 
tive power shall be vested in a House of Repre- 
sentatives." Now whatever may be said of the 
men who framed our first Constitution, it must be 
supposed that the person who wrote, and those 
who adopted this section in the Constitution of 
Pennsylvania, were accustomed to use precise and 



104 MEMOIR OF 

appropriate language, and if it be said that tlie 
word supreme "was a careless expression made use 
of in this case, because the law-making power had 
been termed the supreme power, be it so. It 
proves that the distinction between the power of the 
legislature thej were constituting, and the power of 
all prior legislatures, had never occmTod to them. 
If it had occurred to them that thej could limit 
the power of the legislature which they constitu- 
ted, surely, they would not have conferred on it 
supreme power. 

In the year 1777, the constitution of New- 
York was adopted, by which supreme legislative 
power was vested in a Senate and House of Rep- 
resentatives. The first Constitution of Massachu- 
setts was not adopted until the year 1780. The 
following is the first article — " the department of 
legislation shall be formed by two branches, a 
Senate and House of Representatives." When 
the Constitution of New- York was revised, the 
first article was made to read — " the legislative 
power of this State shall be vested in a Senate 
and Assembly." In the year 1790, the first Con- 
stitution of Pennsylvania, was amended, and the 
first article made to read as follows — " the legis- 
lative power of this Commonwealth shall be vested 
in a General Assembly, which shall consist of a 



THOMAS CHITTENDEN. 105 

Senate and House of Kepresentatives." 

We may here refer to the last section of our 
Constitution, by which it is made the duty of the 
Council of Censors to recommend to the Legisla- 
ture, the repealing of all such laws as shall ap- 
pear to them to have been enacted contrary to the 
principles of the Constitution. It appears by this, 
that the framers of the Constitution did not per- 
ceive that all unconstitutional acts would be void, 
but they considered that they must remain in full 
force and effect until repealed. The Council of 
Censors were authorized to order the Assembly 
to impeach, as this was not a legislative act, but 
they were not authorized to order the Assembly 
to repeal their acts, because they were vested 
with supreme legislative power. I shall hereafter 
pay more particular attention to this section and 
to its practical operation. To close this subject 
and to satisfy the reader, what was the constitu- 
tional law of that period, I refer to the following 
extract from the address of the first- Council of 
Censors. After having censured the legislature 
for passing an act which was a gross violation of 
the Constitution, the Council thus conclutde: 
" And this chain of adamant would be effectually 
riveted, as redress without a dissolution of the 

14 



106 MEMOIR OF 

government could not be expected, none but tbe 
legislature, "whose interest it would be to withhold 
it, being competent to give it." 

By the foregeing it appears that the powers of 
a legislature, established by a State Constitution, 
were at that time considered as supreme and un- 
controllable ; that a written Constitution of civil 
government had not been raised to the dignity of 
a law, much less to the rank of a supreme law of 
the State, as it in fact was, before the Constitu- 
tion of the United States was adopted. And is 
it wonderful, that a distinction was not at once ta- 
ken between the powers of a legislature establish- 
ed by a State Constitution, and the powers of the 
legislature in all other governments, and that it 
was not perceived that the law-making power could 
be limited ? 

Sovereignty had been exercised over the peo- 
ple as subjects. That sovereignty had been swept 
away and the people had become the sovereigns, 
wielding the supreme power of the State. Thus 
situated, time was required for the people to 
break up their fonner habits of thought, and set 
aside the principles of the governments under 
which they had lived, before they could discover 
the principles of their new govenament. Is it 



THOMAS CHITTENDEN. 107 

then incredible that the legislature passed the act 
to give the force of law to the Constitution ? 
The wording of the act affords conclusive evidence 
that this was their object. If the act was passed 
to remedy a defect in the ratification of the Con- 
stitution, it is difficult to conceive why they should 
go beyond the existing Constitution ; but they did 
go further, and enacted " that the Constitution as 
established by the Convention, subject to such al- 
terations and additions as shall be made in it, a- 
greeably to the 44th section of the frame of gov- 
ernment, shall ever be considered, held and main- 
tained as a part of the laws of this State.'* Now 
they must have embraced and legaUzed all amend- 
ments, which should be made to the Constitution, 
either to save the trouble of passing an act at the 
end of each Septenary, to legalize the amended 
constitution, or they must have considered that if 
they made the existing Constitution a law of the 
State, forever, it could never be amended without 
a repeal of their act. 

From what has been said, it is very clear that 
the act was not passed to remedy any supposed 
omission of a ratification of the Constitution. And, 
surely, if it was, it affords no explanation of the 
transaction, for the legislature had no power to 



108 MEMOIR OF 

pass any act affecting the Constitution. They 
were not elected by the people, in the exercise of 
their primitive soveriegnty, to act in relation to 
their fundamental law, the constitution, but to ad- 
minister the government under the Constitution. 

The legislature of Vermont did not stand alone 
in passing acts affecting the Constitution, for on 
the 20th of September 1777, the legislature of 
New Jersey passed an act altering the Con- 
stitution of that State, by substituting the word 
State for the word Colony, in Commissioner's 
writs, &c. No other alteration has been made in 
that Constitution since it was adopted ii\ 1776. 

The reader will recollect that the only evidence 
to prove that the Constitution was considered in- 
valid is an extract from Ira Allen's history of Ver- 
mont. Allen says that the credentials of the 
members of the Convention authorized them to 
form a Constitution, but were silent as to its rati- 
fication. It appears from this that Allen was un- 
acquainted with the constitutional history of that 
period, and it seems he considered that every con- 
stitution, to have any binding force, must be rati- 
fied by the people in their primary assemblies. 
Now until some years after our Constitution was 
adopted, every State Constitution was formed by 



THOMAS CHITTENDEN. 109 

a convention authorized to form a Constitution 
without any subsequent ratification, and of course 
their credentials were silent as to a ratification, 
for none was required. Of this there can be no 
doubt, for it is proved by matter of record. Some 
years after this, and before Allen wrote his his- 
tory, the legislatures of some of the States were au- 
thorized to make amendments to their Constitu- 
tions, but to render them valid a ratification by 
the people was required. Allen does not inti- 
mate that any objection was made to the Consti- 
tution because it was not ratified by the people, 
and it is confidently believed that none was ever 
made. 

The following address of the Council of Safety 
to the people of Vermont, clearly proves that they 
pursued the same course in forming their Consti- 
tution that was pursued by all the other States. 
Thev called a Convention to form and establish a 
Constitution binding upon the people, without be- 
ing laid before them for their ratification. 

In Council op Safety, ) 

Bennington^ Feb. 6th, 1778. ) 

To the Inhabitants of the State of Vermont : 

Gentlemen, — The united and joint represen- 
tatives of this state, in their general convention, 



110 MEMOIR OF 

held at Windsor, on the 2d of July last, did com- 
pose, and agree, unanimously, on a constitution 
for the future government and mutual advantage 
of its inhabitants. It was then proposed by the 
joint agreement of the said representatives, that 
such constitution should be printed, so as to have 
had them circulated among the inhabitants, seas- 
onably, to have had the general election of rep- 
resentatives to compose the general assembly, in 
December last ; who, by agreement, were to have 
met at Bennington, within this State, in the month 
of January last. But finding, by repeated expe- 
rience, that the troubles of the war, and encroach- 
ments of the enemy, would, of necessity, render 
it impossible, this council did think fit to again 
call on the members of the general convention, to 
meet ; who, accordingly, met at Windsor, on the 
24th day of December last, and did, unanimously, 
agree to postpone the day of election until the 
first Tuesday of March next, and the sitting of 
the assembly to be at Windsor, on the second 
Thursday of March next. The constitution is 
now printed, and will be distributed among the in- 
habitants of the several towns in this state, so 
early, that they may be perused before the day of 
election ; which, this council hope, will, sufficient- 
ly, recommend the most safe and just method of 
choosing of representatives to compose the general 
assembly. Nothing but a real zeal for the future 
well being of the United States of America, in 
general, and this, in particular, could have indu- 
ced this council to have undertaken the arduous 
task of sitting, so many months successively, to 



THOMAS CHITTENDEN. Ill 

provide for the safety of its inhabitants. They, 
therefore, flatter themselves that their services 
will meet the approbation of their employers. The 
Council are of opinion that nothing but the want 
of a firm attachment and joint connection of the 
inhabitants of this state, can frustrate ,^ or prevent 
their being what they so reasonably wish to be. 
I am. Gentlemen, by order of Council, 
Your most obd't humble Serv't, 

THOMAS CHITTENDEN, PresH. 

Since this work has been in press, I have been sa 
fortunate as to find, in an old volume containing 
the revised laws of 1787, the folbwing acts of the 
Legislature. An act establishing the Constitution 
of Vermont, and for determining who are entitled 
to the privileges of the Constitution and Laws. 

Be it enacted, That the Constitution of this 
State as revised and established by convention, 
held at Manchester, in June 1786, subject to 
such alterations and additions as shall be made 
agreeable to the 40th section in the plan of Gov- 
ernment, shall be forever considered, held, and 
maintained as part of the laws of this State. 

And be it further enacted, That all the subjects 
of the United States of America, shall, within this 
Commonwealth be equally entitled to the privi- 
leges of law and justice with the citizens of this 
State, in all cases proper for the cognizance of the 
civil authority, and courts of judicature in the 
same, and that without pai'tiality or delay. And 



112 MEMOIR OP 

that no man's person shall be restrained, or im- 
prisoned, unless by authority of law. 

And, in an act, for regulating the election of 
Governor, Lieut. Governor, Council, Treasurer, 
and Representatives, is the following clause — the 
act is not divided into sections : 

Be it further enacted. That qycyj freeJiolder of 
the full age of twenty-one years, having resided 
in this State for the space of one year, next be- 
fore the election of Representatives, and who is of 
a quiet and peaceable behavior, and will take the 
following oath, (or affirmation,) shall be entitled 
to all the privileges of a freeman of this State. 

There are several other clauses in this act in- 
tended to give to certain sections of the Constitu- 
tion the form, force and effect of an act of the 
Legislature : but this it is seen, makes an impor- 
tant alteration in the 18th section in the frame of 
government. That section gave to all, the right of 
suffrage without any property qualification ; the 
act deprived all of the right of suffrage except 
freeholders. This produced a dififerent practice 
in the admission of freemen in the different towns ; 
in some towns they were goverened by the Con- 
stitution ; in other towns, they were governed by 
what they considered the paramount law — the act 
of thQ Legislature. In the revision of the laws 



THOMAS CHITTENDEN. 113 

in 1797, all the acts of the Legislature, legalizing 
or altering the Constitution were swejot away, but 
thej are of more practical use than ever — they 
put the question . we have been discussing at rest 
— they prove conclusively that an act of the 
Legislature was considered paramount to the Con- 
stitution, and consequently, that every act of the 
Legislature, however repugnant to it, riaust con- 
tinue in force until repealed. Hence the Coun- 
cil of Censors- were vested with ample autliority 
to recommend to the Legislature the repealing of 
such laws as shall appear to them to have been 
enacted contrary to the principles of the Consti- 
tution. 

It may appear to the reader that I have occu- 
pied too much space — he may feel that I have de- 
tained him too long with the discussion of this sub- 
ject, but he will find it very useful, as it will en- 
able him to account for the origin, and some of 
the singular provisions of the last section of the 
Constitution, which will be the subject of the next 
chapter. 



15 



114 WEMOIR OF 



CHAPTER VI. 

The last section of the Constitution providing for a Councjf 
of Censors, originated in a want of confidence in the Gov- 
ernment which they had instituted. — Expen^^ive mode of 

. amending the Constitution. — Mode of amending the Con- 
stitution in Kentucky and Missouri. — Extracts from Chip- 
man's principles of Government. 

Having examined those sections of our Consti- 
tution ^'hicli were formed bj making additions to 
certain sections of the Constitution of Pennsylva- 
nia, I will now call the attention of the reader to 
the last section of the Constitution, providing a- 
mong other things for its amendment. This sec- 
tion, it has been seen, is a copy of the last section 
in the Constitution of Pennsylvania, with the ex- 
ception of that part which relates to the number 
and the mode of electing the members of the 
Council. 

In the concise history which has been given of 
the first Constitution of Pennsylvania, the reader 
has seen what was the practical operation of the 
provision in that State. But to ascertain what 
has been, and from the nature of the provision, 
must be its practical operation in this State, is of 
far greater importance to us. I propose, there- 
fore, to treat the subject somewhat at large, and 



THOMAS CIIITTENDEX. 115 

show that the principles on which our institutions 
rest were but imperfectly understood, — that there 
was a want of confidence in the people and in the 
Legislature, and that the Council of Censors was 
constituted for a protection, against both. 

As this section was soon abolished in Pennsyl- 
vania, and most of the thirty American States 
have since that time, either amended their Con- 
stitutions or formed new ones, and not one of 
them, with the exception of Vermont, has adopted 
this section, or any provision contained in it, it 
seems that it must have originated in some pecu- 
liar views of civil government entertained by those 
who framed it, and which arose from the novel 
situation in which they were placed. Our Con- 
stitution of civil government being only evidence 
of a civil compact, an agreement by and between 
the whole people, upon the manner in which they 
would be governed, and the government has prov- 
ed to be so efficient in preserving good order and 
promoting the happiness of the people, that it 
seems to us it naturally grew out of the moral and 
social nature of man, and we cannot conceive it 
possible that any rational being could have enter- 
tained a doubt of the capacity of the people for 
self-government. We must be undeceived with 



116 MEMOIR OF 

respect to this, before we can have any clear un- 
derstanding of our early history. 

Man is a creature of habit, and in nothing does 
habit appear more akin to instinct, than it does in 
relation to the government under -which he lives. 
Without this trait in the character of man, no gov- 
ernment could long exist. 

The people of the American Colonies had lived 
so long under the British Government, a limited 
monarchy, that they had become strongly attached 
to it by habit. They asked nothing, they desired 
nothing but the enjoyment of their Constitutional 
rights as British subjects, and they complained of 
nothing but a violation of those rights by the Min- 
isters of the King, and they felt a strong desire 
for a reconcihation between the Colonies and the 
Mother Country. These sentiments prevailed and 
were generally expressed, until after the Declara- 
tion of Independence. In the first Constitution 
of New Hampshire, adopted on the 5th day of 
January 1776, we find the following : 

Therefore, for the preservation of peace and 
good order, and for the security of the lives and 
properties of the inhabitants of this colony, we 
conceived ourselves reduced to the necessity of 
establishing a form of government, to continue du- 
ring the present unhappy and unnatural contest 



THOMAS CHITTENDEN. 117 

with Great Britain ; protesting and declaring, that 
we never fought to throw off our dependance up- 
on Great Britain — but felt ourselves happy under 
her protection, while we could enjoy our constitu- 
tional rights and privileges — and that we shall re- 
joice, if such a reconciliation, between us and our 
parent state, can be effected, as shall be approved 
by the continental congress, in whose prudence 
and wisdom we confide. 

And to the Constitution of New Jersey, adopted 
July 2, 1776, two days before the Declaration of 
Independence, the following proviso was annexed : 

Provided always, and it is the true intent and * 
meaning of this congress, that if a reconciliation, 
between Great Britain and these colonies, should 
take place, and the latter be taken again under 
the protection and government of the croAvn of 
Britain, this charter shall be null and void — oth- 
erwise to remain firm and inviolable. 

In the government of Great Britain, to which the 
people of the Colonies were so strongly attached, 
as well as in all other existing governments, there 
was a power above the people which governed 
them as subjects. 

Under this government, the people of the Colo- 
nies occasionally witnessed scenes of popular vio- 
lence, endangering the lives and property of all, 
and they had rejoiced to see the violators of the 



118 MEMOIR OF 

law subdued, and peace and good order restored 
in the name and by the authority of the King. 

But they could not readily conceive how this 
could be done by the people themselves, and so it 
came to be said that the people needed protection 
against their own worst enemies, themselves. And 
great fears were entertained, that a government 
by the people would have none of the properties 
of a good government, that it would neither have 
any stability nor render the citizens secure in 
the enjoyment of their rights. And these views 
and these fears were expressed, until the Con- 
stitution of the United States was adopted. 

The reader has seen that the first Constitution of 
Pennsylvania was formed twelve years before this, 
when the first attempt was made to form a civil gov- 
ernment, founded on the sovereignty of the peo- 
ple, and when, as before remarked, great fears 
were entertained that such a government would 
prove a failure. All their ideas of civil govern- 
ment had been formed, by witnessing the opera- 
tion of those governments, where the people had 
been governed by some man or body of men rais- 
ed to a high rank above them, and in whom was 
vested the power, and consequently the sovereign 
right to govern. And they could not readily con- 



THOMAS CHITTENDEN'. 119 

celve how the people could be all at once trans- 
formed from subjects into sovereigns ; it seemed 
like letting the people loose upon themselves. 
And their fears were greatly increased by the er- 
roneous opinion then prevailing, that the powers 
of the Legislature could not be restricted — that 
all their acts, however repugnant to the Consti- 
tution, would have the force of laws. Fears were 
also entertained that the people would be so fickle, 
that no permanent government could be maintain- 
ed. The framers of the Constitution were op- 
pressed with these fears, and almost brought to a 
stand, when a plan was conceived and proposed 
for creating a power so long sought in vain, which 
was to control the Legislature, prevent all abuse 
of power, and, at the same time, keep the people at 
a respectful distance from their Constitution ; and 
they break out in the triumphant language of the 
section, " in order that the freedom of this Com- 
monwealth may be preserved inviolate forever, 
there shall be chosen by ballot, &;c." Through 
the whole section, we find the language of a man 
who, in the prosecution of a hazardous enterprise, 
on the successful issue of which, he had risked his 
whole fortune, had met with obstacles in his way, 
which had appeared insurmountable, and who af* 



120 MEMOIR OF 

ter a long and doubtful struggle had removed 
them all, and is exulting in his unexpected suc- 
cess. It being the great object to create a high 
controlling power, they make a free use of the 
word authority, " they shall have authority to pass 
public censures, and to recommend to the Legis- 
lature the repealing of such laws," &c. They 
did not make it the duty of the Council to pass 
public censures, if they should find anything cen- 
sureable in the administration of the government ; 
this would have appeared to them but feeble lan- 
guage, illy adapted to create that high power 
which they had in view. By neither of the clau- 
ses of the section above recited, is the least power 
conferred upon the Council. The same is the 
case with the clause which authorizes the Council 
to order impeachments, for the Council had no 
power to enforce the order. The framers of the 
Constitution then must have relied on the great 
moral power with which they had invested the 
Council, and yet, experience has shown that they 
have been entirely powerless, they have not had 
as a body the least power whatever; not because 
it has been composed of uninfluential men, far 
from it ; we haVe generally had in the Council 
men of the highest standing, men of great person- 



THOMAS CHITTENDEN. 121 

al influence ; but it arose from the constitution of 
the Council itself, composed of a small number pos- 
sessing no power whatever. It is necessarily so 
with all political bodies ; reduce their numbers 
and their influence is lessened, unless their power 
be augmented, as in the case of our old Council, 
as it is termed, a body composed of about the 
same number of the Council of Censors. They 
possessed just power enough, occasionally to dis- 
turb the house of Representatives in their career 
of legislation. The members of the House looked 
upon the Council as an inferior body. These 
feelings were more and more manifest, until it was 
observed that when the Governor and Council en- 
tered the Kepresentatives Hall, the members 
"Would speak contemptuously of the Governor and 
his team. On the other hand, in those States 
where the whole power of appointment is vested 
in the Governor and four or five Councillors, these 
small bodies are highly respectable and influential, 
because vested with important powers. 

Sensible of their want of power to correct the 
administration of the government by public cen- 
cures, the Councils have generally omitted this 
part of their duty ; they have occasionally recom- 
mended to the Lcgislatui-e the repealing of uncon- 

16 



122 MEMOIR OF 

stitutlonal acts, but as we have before seen, this m 
utterly useless, and but one order for an impeach- 
ment has been made. At the October session of 
the Legislature in 1799, the Council of Censors 
ordered the house of representatives to impeach a 
sheriff, for taking illegal fees. The Council held 
that the House were bound to impeach the sheriff, 
charging him with the mal-feasance contained in 
the order, without evidence. The House put a 
very different construction upon the Constitution ; 
they considered themselves as the grand in- 
quest of the State, and that an impeachment be- 
fore them was in the nature of a bill of indictment 
before a grand jury, and the order of the Coun- 
cil made it their duty to send for the evidence, and 
to decide whether it was sufficient to support the 
charge. They accordingly sent for the evidence, 
and Rnding it insufficient, dismissed the order. 
This waa in high party times, and the question 
was made & party question, and of course the de- 
cision is entiUed to no weight as a precedent ; it is 
difficult, however, to put any other rational con- 
struction upon the Constitution. With respect to 
the practical operation oi' the Ciwuses of the sec- 
tion above recited, it is sufficient to observe that 
they have been rather useless than injurious. I 



THOMAS CHITTENDEN. 123 

Visli the same could be said with respect to the 
remaining part of the section, providing a mode of 
amending the Constitution, but this cannot be said 
■with truth. For it has proved expensive beyond 
all example ; we have had ten Councils of Censors 
at an expense of between 1400 and 1500 dollars 
each, and eight Conventions, including the one 
now called, at an expense of between 5 and 6000 
dollars each. Nothing like this is to be found in 
any other State. Some of the States have never 
had anv Convention to amend their Constitution, 
and no one has had more than three. Whence 
this difference ? Is it because the people of Ver- 
mont are more restless and uneasy than the peo- 
ple of other States, and are therefore, more dispo- 
sed to be constantly nltering their Constitution ? 
No one will admit this, but every one who will 
pay the least attention to the subject, will per- 
ceive that it has arisen from our absurd pro- 
vision, for the election of a Council periodically at 
the end of every seven years, whose duty it is to 
tax their ingenuity in devising some amendments 
to the Constitution, to supply defects which the 
people had never discovered. In every other 
State the Constitution remains undisturbed, until 
the people become dissatisfied with it, and, in some 



124 MEMOIR OF 

form, express a desire to have it amended. We 
have seen in what manner the State of Pennsyl- 
vania proceeded in amending their Constitution : 
the people were dissatisfied with it, and the dis- 
satisfaction was of course represented in the Leg- 
islature, and they referred to the people the ques- 
tion whether a Convention should be called to a- 
mend the Constitution : — that a Convention was 
called and a new Constitution formed. That the 
people expressed no dissatisfaction with this Con- 
stitution till the year 1825, when the Legislature 
again referred the question to the people, whether 
a Convention should be called, and they decided 
against it. Now here the question was decided 
by the people themselves, without any expense, 
and, if in any such case, the people decide in fa- 
vor of a Convention, the presumption is, that their 
representatives in the Convention will amend the 
Constitution agreeably to their wishes. Accord- 
ingly, in the other States, where no attempt was 
made to amend the Constitution until the people 
express a wish for it, I cannot find that a Conven- 
tion has ever failed to amend it agreeably to the 
"wishes of the people, whereas most of our Con- 
ventions have been abortive. Indeed, since the 
year 1786, no amendment of any importance ha$ 



THOMAS CHITTENDEN. 125 

been made, except that constituting the Senate. 

This has not resulted solely, from the calling of 
conventions periodically, while the people are sat- 
isfied with the Constitution, and do not wish to 
have it amended, but, in part from the restricted 
powers of the convention. 

When the people, from every part of the State, 
meet in Convention to consider of any proposed a- 
mendment to the Constitution, different opinions 
will at once be manifested, and the necessity of 
acting in a spirit of compromise will be perceived. 
And when any one finds that a majority of the 
Convention cannot be brought to coincide with 
his views, he will modify his own individual opin- 
ion, and join in support of the amendment, with 
such modifications, as will render it acceptable to 
a majority, if he shall judge that the amendment 
so modified will improve the Constitution. Thus 
the individual wills of the members are modified 
and reconciled, and the will of a majority of 
the people prevails as far as practicable. But 
the members of our Conventions are deprived of 
the privilege of acting in a spirit of compromise, 
if they are so fortunate as to be actuated by it. 

Many cases have occurred, showing the incon- 
Teaience, not to say the absurdity of our mode of 



126 MEMOIR OF 

amending the Constitution. I will notice only the 
following. The Council of Censors elected in 
1834, proposed the following amendment to the 
Constitution: " Sherifis and High Bailiffs shall be 
elected by the freemen of their respective Coun- 
ties, and shall hold their offices for the term of 
three years ; and sheriffs shall not be re-eligible to 
the same office, during the three years next follow- 
ing the term for which they shall have been elec- 
ted." When the amendment was discussed, it 
was soon found, that, as the convention was com- 
pelled to swallow the whole, or throw it away, the 
amendment could not be adopted. Many mem- 
bers were anxious to have sheriffs elected by the 
people, but would not consent that they should 
hold their offices for more than one year. Oth- 
ers wished to have them hold their offices for 
three years, but could not consent to have them 
elected by the people. Others wished sheriffs to 
be elected by the people for three years, and that 
the people should be at liberty to elect the same 
individual triennially, so long as they should find 
him capable, honest and faithful ; they would place 
no restrictions upon the people in their elections ', 
and the amendment was rejected. 
The same may be the fate of an amendment 



THOMAS chittende:^. 12T 

proposed by the last Council of Censors. The 
proposition is to give to each town, containing 
25,00 inhabitants, two representatives, and an ad" 
ditional representative, for every additional number 
of 1500 inhabitants. Now supposing there be a 
majority in the convention in favor of increasing the 
number of members in our House of Representar 
tives, by giving additional members to large towns, 
many of this majority may oppose the amendment 
on the ground that the mean increasing number, 
for an additional representative, should be at least 
twice 1500, and the amendment may be rejected. 
Whereas if the Convention were at liberty to dis- 
cuss the subject, and in a spirit of compromise to 
reconcile their different opinions, which on such a 
subject must in the outset be extremely variant, 
the amendment might be adopted. 
' No other State excepting New Hampshire has 
provided for a periodical attention to their Consti- 
tution. In that State they adopted a new Consti- 
tution in the year 1792, in which there is a pro- 
vision, that at the expiration of every seventh year 
the people shall, at the annual election, vote on 
the question, whether a Convention shall be called 
to amend the Constitution, and whenever a major- 
ity of all the freemen of the St^te ghall vote ia 



12S MEMOIR OF 

favor of it, a Convention shall be called by the 
Legislature. This provision effectually prevents 
all abortive attempts to amend the Constitution, 
and leaves it undisturbed until the people express 
a wish for its amendment. Accordingly, as the 
people have been satisfied -with their Constitution, 
it has remained unaltered for fifty- seven years. 
This Constitution was formed after the people had 
been taught by experience that they were capa- 
ble of self-government, and had acquired a high 
degree of confidence in our written constitutions. 
When the first Constitution of Pennsylvania was 
formed, in the year 1776, it was far otherwise ; 
they were very fearful that the pohdcal machine 
which they had invented and constructed would 
prove a failure, and they were very sure that as 
often as once in seven years, at least, it would re- 
quire a thorough overhauling and extensive re- 
pairs. And it seems they had little confidence 
in those who were appointed to take charge of it ; 
they therefore provided for the appointment of a 
board vested with ample authority, not only to 
Bcold the tenders, and advise them to take back 
any bad work which they had turned off, but to 
repair the machine itself, or rather to decide what 
repairs the people should be permitted to inake« 



THOMAS CHITTENDEN. 129 

This Council of Censors, by the Constitution of 
Pennsylvania, was elected by counties, so that 
all i^ohtical parties had a voice in the election, but 
the section was so amended in framing our Con- 
stitution, as to provide for the election of the 
Council by a general ticket ; by this, the minor 
pohtical party are deprived of a voice in propos- 
ing amendments. The candidates for the Coun- 
cil are selected by a caucus of the dominant par- 
ty, and the people are called upon to give their 
votes for the members of a Council of Censors, 
not because they have become dissatisfied with the 
Constitution and wish it amended, but because 
another Constitutional term of seven years has ex- 
pired before they were aware of it. The conse- 
quence is, that very little interest is felt in the e- 
lection, and but few votes are given ; some vote 
because they have been accustomed to vote for 
their party candidates, and some because it is the 
business of the meeting to vote ; but not one vote 
is given with reference to the sentiments of the 
person voted for, relative to amending the Consti- 
tution. The members of the Council, therefore, are 
in no sense the representatives of the people, but 
the caucus candidates are elected. I say this be- 
cause the three last Councils have been thus elected, 

IT 



130 MEMOIR OF 

and the two first of them proposed amendments to 
the Constitution and called Conventions to consid- 
er them. Now it is quite natural that the minor 
party, who have been thus proscribed and depriv- 
ed of a voice in proposing amendments, should 
look upon them with great disfavor. And either 
because many candid and high-minded men of 
both political parties have been disgusted with 
this very exceptional mode of proceeding in select- 
ing the Council, or because the minor party have 
been more active and have more generally attended 
the meetings, that party have had a majority in the 
Conventions. This was the case in both of the 
two last Conventions ; and in the Convention of 
1836, the amendment constituting a Senate came 
near being lost by this absurd mode of proceed- 
ing. The democratic party, for the reasons above 
stated, were generally opposed to the amendment, 
and it would have been lost, had it not been sup- 
ported by several high-minded members of that 
party, who preferred the pubhc good to party in- 
terest. By their influence the amendment was ad- 
opted by a majority of three . But the amendment 
was again put in jeopardy by the desertion of two 
other men of that party, both of whom had vo- 
ted for the amendment, and one other member, 



THOMAS CHITTENDEN. 131 

who had voted for the amendment, being neces- 
sarily absent, a change of the votes would give a 
majority of two against the amendment ; they, 
therefore, full of confidence that they should suc- 
ceed, moved a reconsideration of the vote. Their 
surprise and mortification at the result maybe 
readily conceived : a majority of nine against a re- 
consideration of the vote. This change of votes 
in the Convention was accounted for at the time. 

When the members of the Convention were 
chosen, for the reasons which have been stated, in 
many of the larger towns, but fifteen or twenty 
attended the meeting, and having experienced no 
evils from the existing Constitution, were opposed 
to any alteration of it, and instructed their dele- 
gates to vote against any amendment of it. When 
the vote was taken on the motion to reconsider, 
several of the members who had voted against 
the amendment in obedience to their instructions, 
had become anxious for its adoption, and said that 
the sense of the Convention had been fairly taken, 
and they should vote 'against the resolution. 

But the most weighty objection to this provis- 
ion is, that when the people meet in Convention 
to amend their Constitution, they are restricted 
in the exercise of their primitive sovereignty. 



132 MEMOIR OF 

When we say that the people have at all times a 
right to reform or alter their Constitution, Tve 
mean that thej have a right to do this by their 
representatives in Convention. 

But by this provision we have restricted the 
people to the simple adoption or rejection of the 
amendments proposed by the Council. The fra- 
mers of this section in the Constitution had lived 
under the charter of Governor Penn, which re- 
stricted the legislative power of the General As- 
sembly to the passing of such bills as should be 
laid before them by the Governor and Council. 
Although this restriction had become extremely 
odious to the people of Pennsylvania, as they felt 
it to be an unnecessary and gross violation of the 
rights of the people, yet, as they considered it to 
be absolutely necessary to restrict the people in 
the exercise of their political Legislation, in amend- 
ing the Constitution, they very naturally restrict- 
ed them in the same manner in which Governor 
Penn restricted the General Assembly — they re- 
stricted the power of the people, when assembled 
in Convention to amend the Constitution, to the 
simple adoption or rejection of such amendments 
as should be laid before them by the Council of 
Censors. This is as unexampled as it is absurd. 



THOMAS CHITTENDEN. 133 

In no other State is a Convention called to amend 
the Constitution laid under any restrictions what- 
ever, but the whole Constitution is open to amend- 
ment. 

The following is the mode of amending the Con- 
stitution in Kentucky. The Legislature pass an 
act specifying certain amendments to the Consti- 
tution, which is published, and the question is re- 
ferred to the people whether a Convention shall 
be called to amend the Constitution, and if there 
be a majority of the freemen of the State in favor 
of a Convention, the same shall be repeated the 
next year, and if a majority of all the freemen of 
the State again vote for it, a Convention shall be 
called. Now since such amendments are framed 
by the Legislature, in which the people are rep- 
resented as fully, and in the same manner as they 
are in a Convention called to amend the Consti- 
tution, if the Convention were restricted to the a- 
doption or rejection of such proposed amendments, 
(and objection to it would seem rather technical 
than solid,) yet in framing their Constitution, they 
considered a Convention, the members of which 
were elected by the people in the exercise of 
their primitive sovereignty as the people them- 
selves, and that the powers of the Convention 



134 MEMOIR OF 

could not be restricted but must be the same as 
were the powers of the Convention which formed 
the Constitution. I have said that none of the 
States have laid any restrictions upon a Conven- 
tion called to amend the Constitution, but some 
of the States have dispensed with Conventions 
altogether. 

In some of the States, slaveholders, conscious 
that slavery is held in utter abhorrence, as a gross 
violation of the natural rights of man, and that 
every opportunity will be seized to abolish it, have 
taxed their ingenuity to erect some constitutional 
barrier against it. Take the Constitution of Mis- 
souri as an instance : The Constitution of that 
State, as of all other slave-states, prohibits the 
abolition of slavery by the Legislature, without 
the consent of the owners, and the following is 
the mode provided for amending the Constitution 
of Missouri. " The legislature may at any time 
propose such amendments to the Constitution as 
two thirds of each House shall deem expedient, 
which shall be published in all the newspapers 
published in the State, three several times at 
least, twelve months before the next general elec- 
tion.* And if at the first session of the Gener- 



*The Legislature of Missouri meets biennially. 



THOMAS CUITTENDEN. 185 

al Assembly after sucli general election, two 
thirds of both Houses shall by yeas and nays rat- 
ify such proposed amendments, they shall be val- 
id to all intents and purposes, as parts of this 
Constitution. '^ 

This it was supposed would secure the power 
of the master over the slave, and render it perpet- 
ual. But in this they will be disappointed. For 
"whenever there shall be a decided majority of the 
people of the State in favor of abolishing slavery, 
an act will be passed by a majority of the legisla- 
ture, referring to the people the question whether 
a Convention shall be called to amend the Consti- 
tution — a Convention will be called — the Consti- 
tution amended-^and slavery will be abolished. 

When the people of Missouri met in Conven- 
tion and framed their Constitution, a majority of 
necessity governed, and they acted under no re- 
strictions, but as sovereigns ; and the people of 
Missouri are in possession of the same absolute 
sovereignty, and when again called into exercise 
in amending their Constitution, a majority must 
govern. To admit that the sovereignty of the 
people can be restricted by the Constitution, is 
an admission that it may be made unalterable, 
■which is absurd. The people, by reason of ar 



136 MEMOIR OF 

difference in their condition, temperament and 
habits, are divided into two parties, the progres- 
sive party and the conservative party. The for- 
mer, being dissatisfied with their condition, are 
zealous and active in their efforts to change and 
improve it. The conservatives, on the other hand, 
being satisfied with their condition, stand braced 
against any attempted changes. The latter have 
the force of habit on their side, which enables 
them to make a stand against the greater order 
and activity of their assailants, so that neither can 
obtain a complete victory. This is fortunate, for 
like all political parties, by their contentions, a 
repulsion is created between them, and they be- 
come ultra on both sides, being equally distant 
from that middle course which calm reflection and 
common sense would dictate. But no conserva- 
tive has ever become so ultra as to contend, that 
either the organic law, the constitution, or the 
municipal law should be made unalterable — for 
this would prevent all progress — all improvement, 
so that neither law could from time to time be ad- 
apted to the existing condition of the people, or 
be made such as to meet their approbation, and it 
has been well said, that it is, perhaps, of as much im- 
portance, in general, that the people should see and 



THOMAS CHITTENDEN-. ' 137 

ackno^vledgc the laws to be wise and good, as it is 
that thej should be really wise and good. This 
subject may be further illustrated in few words. 
The people are at all times the sovereign poHtical 
legislature of the State, vested with full power to 
pass all organic laws, all laws relating to the Con- 
stitution, and cannot be bound by any prior acts 
of the same legislature. It is obvious, then, that 
the mode which was pursued in Pennsylvania, in 
amending their Constitution, was so far from be- 
ing revolutionary, that it was founded on the great 
conservative principle, that the political sovereign- 
ty of the people must continue absolute, and that 
their power of political legislation cannot be ev- 
en temporarily suspended by themselves. If it be 
said that the Constitution of the United States can- 
not be amended by a bare majority, but a 'majori- 
ty of three fourths of the States is required to amend 
it ; in answer to this, it is sufficient to observe 
that there is no analogy between the Constitution 
of the United States, and the Constitution of a 
State. The Constitution of the United States is 
so far a compact between independent States as to 
render such restrictions necessary and proper. 
But, although when the people are in the exer- 
cise of their primitive sovereignty, in framing or 

18 



138 MEMOIR Of 

amending their Constitution, a majority must 
govern, yet they may so frame their organic laws^ 
as to require a majority of two thirds, or any great- 
er proportion of the public functionaries to con- 
cur, to render their acts valid. This, however, 
is not in accordance with the principles of our in- 
stitutions. It will be more clearly seen hereafter, 
that the strength of the government consists in 
having all measures supported by a majority. 

On this subject of amending the Constitution, 
we find the following in Chipman's Principles of 
Government : 

" That the people may constitutionally exercise 
their powers of political legislation, it must be 
provided that they shall, by their representatives 
elected for that purpose, meet in convention, on 
the call of the ordinary legislature ; or the legis- 
lature may be authorized to make proposals of a- 
mendment of the constitution to the people, to be 
ratified or rejected in their primary assemblies. 
Nor can the legislature, composed of members 
from every part of the state, fail of knowing and 
being influenced by the sentiments of the people 
on the expediency of such a measure. Some 
states have authorized the ordinary legislature to 
make any amendment of the constitution by their 
own act ; but requiring a greater degree of una- 
nimity than in common cases, and that before its 
final adoption it shall be passed by two successive 
sessions, that a new election of representatives may 



THOMA.S CHITTENDEN. 139 

intervene, who, it is supposed, will have learned 
and will be actuated by the sentiments of the peo- 
ple on the proposed amendment. But this must 
be considered, in a measure, a departure from 
the principles of the government ; as it confounds 
the several powers of legislation, and, in a degree, 
the obligation of the political and civil laws, which, 
as they are distinct in their nature, ought to be 
kept in a distinct view. It seems highly expedient 
that every amendment to be laid before the peo- 
ple for their consideration, should be passed with 
the same caution, and the same delay, that it may 
be maturely considered before its final adoption. 
Indeed, none but simple propositions ought to be 
submitted in this way. The people in their pri- 
mary assemblies are incapable of discussing intri- 
cate questions. All amendments, alterations, and 
changes of the constitution that require a deliber- 
ate discussion in order to a proper adjustment, 
ought to be referred to a convention of the peo- 
ple, by their representatives chosen for that spe- 
cial purpose, where they may meet a full and fair 
discussion, and be adopted or rejected on mature 
deliberation."* 



*When we speak of the people as the political legislators 
of the State, we have referred to the manner in which the 
people of the American States have exercised the powers of 
government. Instead of exercising the power of civil legisla- 
tion, as in a pure democracy, they have usually exercised the 
power of political legislation, in forming constitutions, insti- 
tuting governments vested with the whole power of civil leg- 
islation, by which they have divested themselves of this pow- 
er, until they again meet, and, in the exercise of their power 
of political legislation, alter or abolish the Constitution ; hence 
the people aie termed the political legislators o*" *hc State. 



140 ME3I0IR. OF 

It appears that, in writing Lis Principles of 

Government, the author did not advert to the 

question whether the political sovereignty of the 

people can in any way be limited or restricted. 

And yet, on an examination of his whole work, we 

find every part of it consistent with the principle 

that the people, being the sovereign legislature of 

the State, must necessarily be free to act in 

relation to their organic law — the Constitution — 

without any restrictions whatever. I have the 

means of knowing that he adopted this principle, 

and the reader will be satisfied that I am correct 

in this, from the following extract^ of a letter of 

his, dated 20th Dec. 1842 : 

" I am glad that you have undertaken an ex- 
amination of the last article in our constitution, 
providing for the election of a Council of Censors, 
periodically, at the expiration of every term of 
seven years, vested with certain powers, and a- 
mong others, that of proposing amendments to the 
Constitution, and calling a Convention to act on 
their specific propositions. As to their censorial 
powers, I have always considered them a mere 

But when they thus meet, their powers of civil and political 
legislation are altogether unlimited and supreme. And in 
framing the State Constitution, they have exercised the pow- 
er of civil legislation, to a greater or less extent. As an in- 
stance of this, see the 3 1st section in our frame of government : 
" All deeds and other conveyances of land shall be recorded 
in the town clerk's office in the respective towns." This is 
purely civil legislation. 



THOMAS CHITTENDEN. 141 

nose of wax, and the impropriety, not to say ab- 
surdity, of the provision, which compels the rep- 
resentatives of the people, in convention, to work 
in trammels, confining them to the adoption or re- 
jection of each article proposed, without the least 
alteration, is very apparent. I wish I could write 
you more fully on this subject, but I have so 
nearly lost my eye-sight that writing, as you will 
perceive by this, has become extremely difficult." 

We have seen that the people of Pennsylvania, 
had a great dishke to the provision for amending 
the Constitution through a Council of Censors. 
They looked upon it as the tree of evil, for its 
fruits were bitter, and they constantly assailed it 
from the very day it was planted, and so loosened 
its roots that it died, and before the end of the 
second septennary it rotted and fell, when there 
was not a breath of air to move it. But when the 
only tree of the same family was planted in Ver- 
mont, it was a great favorite mih the people, they 
mistook it for the tree of liberty, for whoever 
looked upon it was assured that it would preserve 
the freedom of this Commonwealth inviolate for- 
ever. And it has remained so long undisturbed 
— its roots have struck so deep in the earth, that 
it will require the whole strength of the people to 
remove it. 



142 MEMOIR OF 

I will close this chapter with a single remark, 
that it would be more modest, if not more wise, to 
pay some deference to the opinion of all our sister 
States, than to assume that we have all the wis- 
dom, and that it will die with us. 



CHAPTER VII. 

Little regard paid to the Constitution in the first Septenary. 
— Address of the Council of'Censors to the people, at the 
close of their deliberations. 

In stating the alterations which were made in 
the first Constitution of Pennsylvania, in framing 
the Constitution of Vermont, I have given a gen. 
oral view of the course of legislation during the 
first septennary. No particular regard was paid 
to the Constitution. This was fortunate for the 
State, for if it had been understood that the Con- 
stitution was the supreme law, and that the power 
of legislation was limited by it, the government 
might not have been sustained. Gov. Chitten- 
den, as has been seen, had a remarkable tact in a- 
dapting his measures to the existing state of 
things, and he was but very little disturbed by 



THOMAS CHITTENDEN. ' 143 

any constitutional restrictions. Judge Chipmanj 
■who came into the State soon after the govern- 
ment was organized, a young lawyer, and of course 
somewhat technical, did not in all cases approve 
of the course pursued by Gov. Chittenden ; but he 
too was distinguished for his capacity in adapting 
legislation to the condition of the people, as he 
was afterwards distinguished as a judge, in adap- 
ting the law to the justice of the case before him, 
and generally acted with Gov. Chittenden. 

He supported the quieting act so called, after 
its details were so amended as to do equal justice 
to land owners and settlers. And after the State 
had been carried through these troublous times 
and become one of the United States of America, 
I have often heard Judge Chipman remark that 
he did not believe the government would have 
been sustained, had any man but Gov. Chittenden 
been at the head of it. 

At the close of the first septennary, the follow- 
ing persons were elected members of the Council 
of Censors : Lewis Bebee, Jona. Brace, Benja- 
min Carpenter, Ebenezer Curtis, Jona. Hunt, 
Stephen Jacobs, Ebenezer Marvin, Increase 
Mosely, Elijah Robinson, John Sessions, Micah 
Townsend and Ebenezer Walbridge. The Coun- 



144 MEMOIR OF 

cil examined the proceedings of the legislature, of 
which the J gave a detailed account in an able ad- 
dress to the people. 

They proposed amendments to the Constitution, 
a number of which were adopted b}^ the Conven- 
tion, holden at Manchester, in June, 1T8G, and 
the whole Constitution, as amended, was estab- 
lished and published with the revised laws of 1Y87. 
It is also contained in a volume of the Laws, pub- 
lished by Anthony Haswell, in 1791, and the read- 
er may compare the amended Constitution with the 
first contained in this volume, and ascertain what 
amendments were made. Instead, therefore, of 
occupying the space necessary to give all the a- 
mendments in detail, I insert the above named 
address to the people, as it contains a history of 
our legislation, during the septennary. 

ADDRESS 

OF THE COUNCIL OF CENSOKS. 



To the Freemen of the State of Vermont : 

Your Council of Censors, elected agreeably 
to the XLIVth section of the Constitution, after 
having maturely considered the Frame of Gov- 
ernment which has been the rule of poHtical con- 
duct for the inhabitants of this State, the last 



THOMAS ClllTTENDEX. 145 

Septenary ; liighly approving the principal part 
of it ; -with the greatest diffidence of their own 
judgment, and respect for the patriotism and a- 
biUties possessed by the formers of the present 
Constitution, have proposed certain alterations, 
heretofore offered to your consideration. In so 
doing, we principally had in view rendering gov- 
ernment less expensive, and more wise and ener- 
getic ; objects, in the opinion of this Council, more 
especially during the infancy of a Commonwealth, 
worthy the attention of its freemen. The taxes 
which have been collected some years past for the 
support of government, demonstrate the expedi- 
ency of the former ; and every man's observation 
will suggest to him the necessity, for our political 
happiness and credit, of having government prop- 
erly maintained;, and the judicial and executive 
offices therein, filled by persons of the greatest 
wisdom and virtue. 

In the proposed alterations, we endeavored to 
guard, in future, against what is esteemed by this 
Council (our circumstances considered) to have 
been an error in the Constitution — electing per- 
sons to judicial and executive trusts, during good 
behavior : as it invested them with estates in their 
offices, which, without an alteration of the Frame 
of Government, cannot be legally taken from 
them, but by proving, in a judicial course of pro- 
ceeding, instances of mal-administration. We 
therefore left it in the power of the Governor, 
Council, and Assembly, (whom we view in the 
present condition of the State, to be most compe- 
tent to the election of judicial, and the several 

19 



146 MEMOIR OF 

executive officers, which, in the proposed alteriS- 
tions, they are authorized to choose,) annually to^ 
leave out any one who shall be found unequal to, 
or otherwise improper for, his trust, and appoint 
a more suitable person in his place. But this- 
Council is not without hope that the ensuing sep- 
tenary will furnish men so adequate to those offi- 
ces, that the tenure of them may, consistent with 
the public interest, be put upon a more stable 
footing. 

We also endeavored, after the example of some" 
other States, to guard against the further intro- 
duction of an aristocratic power, destructive" of 
the common weal, by providing that the same per- 
son should not, at one time, be invested with too* 
many important offices, especially where one 
would be a hindrance to his properly discharging 
the duties of the other. And likewise to prevent 
any family, or party, in future, having it in their 
power to establish a set of connexions, prejudicial 
to the community, by providing that certain offi- 
cers, of the greatest influence and importance, 
should, at stated periods, be reduced to the com- 
mon level ; and by being thus constantly reminded 
of their poUtical mortahty, be induced to act well 
their parts while on the stage. 

This Council proposed for your option two plans 
for electing Councillors and Representatives in 
Assembly, each differing from the mode now in 
use, but one of them necessarily consequent to the 
design of reducing the number : if either meets 
with your approbation, we shall be happy; yet 
cannot but wish the choice of Representatives in a 



THOMAS CHITTENDEN. 147 

county convention may have a trial for one sep- 
tenary. 

In reviewing the proceedings of the legislative 
and executive branches of government, and exam- 
ining whether they have performed their duty, 
" as'^guardians of the people, or assumed to them- 
selves, or exercised, other or greater powers than 
they were entitled to by the Constitution," it af- 
fords us great pleasure to find matters of com- 
mendation, yet accompanied with the mortification 
of having some to censure. But as the Constitu- 
tion has "allotted us solely, the last, and more un- 
pleasing task, we can only in general observe, 
that, under God, this commonwealth is much in- 
debted, even for its present existence as a sepa- 
rate community, to that undaunted firmness, and 
prudent vigilance for the public safety, which has 
been usually maintained in the legislative and ex- 
ecutive departments, since the era of our inde- 
pendence. At open war with the most potent 
nation in Europe ;— frequently threatened with 
invasions from a sister State, and, by her insidious 
arts, a powerful disaffection fomented within the 
bowels of this commonwealth— denied rehef from 
the authority who alone, under Heaven, could give 
it;— we have reason to look up, with gratitude, 
to that Being who is wisdom, and by whom a few 
husbandmen, unexperienced in the arts of govern- 
ing, have been enabled to pilot the ship through 
storms and quicksands, into the haven of indepen- 
dence and safety ; and to admire, when we consid- 
er how much was to be done, and by whom, that 
it has been so well done. 



148 MEMOIR OF 

But we are obliged to check such agreeable 
thoughts, and however irksome to our feelings, 
turn our attention to the province allotted us ; 
censuring such unconstitutional proceedings as 
may be drawn into precedent, if left unnoticed. 

We would premise in the words of Judge 
Blackstone, that, " in all tyrannical govern- 
ments, the right both of making and enforcing 
the laws, is vested in one and the same man, 
or one and the same body of men, and wher- 
ever these two powers are united together, 
there can be no public liberty." The convention 
who framed the Constitution of this State, aware 
of this, by a decided distribution of power, assign- 
ed the legislative authority to the Representatives 
of the people in General Assembly, and the su- 
preme executive, to the Governor and Council ; 
and from the last, again severed the judicial, and 
rendered it independent of both. And to pre- 
serve this balance of power, thus carefully made, 
and guard against any encroachment of one on the 
proper authority of either of the other, the con- 
vention made it the duty of the Council of Cen- 
sors to inquire, " whether the legislative and ex- 
ecutive branches of government have assumed to 
themselves, or exercised, other or greater powers 
than they are entitled to by the Constitution." 

In how many soever instances, therefore, the 
legislative and executive authorities have trans- 
gressed the limits marked out to them by the Con- 
stitution, and intruded upon the province allotted 
to the other, (whatever temporary reasons they 
might have for so doing,) they are certainly, in 



THOMAS CHITTENDEN. 149 

those particulars, deserving of severe censure, as 
such conduct, from persons entrusted with the 
important charge of making and executing laws, 
(by trampling upon the fundamentals of govern- 
ment, which ought to be held sacred,) naturally . 
tends to introduce tyranny on the one hand, or 
anarchy on the other. 

In some instances, however, it is probable that 
the Constitution has been mvaded through neces- 
sity, in times of extreme danger, when good men 
w^ere induced to hazard all consequences for the 
sake of preserving our existence as a people ; yet 
in a review of these proceedings, we have thought 
proper to advert even to such branches of the 
Constitution, lest they should be made use of as 
precedents when no such necessity shall exist. 

Some instances of the Council's assuming power 
not delegated to them, we now proceed to select 
from their journal. 

On the 17th June, and 20th October, 1778, 
they take the very extraordinary step of divorc- 
ing Laurania M'Clane, and Ruth Chamberlin, 
from their respective husbands, and declaring 
their right of marrying again. 

On the 14th November, 1781, they resolve that 
Doctor John Page be remitted one fourth part of 
the debt due from him to Colonel William Marsh, 
on account of his debts being contracted in Conti- 
nental money. It is to be observed that the debts 
of Colonel Marsh, by the confiscation of his es- 
tate, had, before that time, become the property 
of this commonwealth; and that in April, 1781, 
the law fixing a general scale of depreciation for 



150 MEMOIR OF 

all debts contracted in Continental money, had 
passed. Why then, Doctor Page should be made 
an exception to the general rule, or from "whence 
the authority was derived, that, in this instance, 
altered or dispensed -with the operation of the 
law, we are left in the dark. 

In the several acts of the Legislature respect- 
ing the survey of the town lines, the Governor 
and Council are, in the opinion of the Board, in- 
vested with the sole power and trust of adjusting 
the accounts of the several persons employed in 
running those lines : yet we find that in March, 
1784, the Council resolve, " That the Surveyor- 
Oeneral settle the accounts of the several Sur- 
veyors under his direction, for their services in 
running town lines, and draw orders therefor, or 
for the payment thereof, on the hard money 
tax." 

This (however respectable the character of the 
Surveyor-General may be) appears to this Coun- 
cil to have been delegating a trust, committed to 
them solely to execute, and into very unsuitable 
hands, as it effectually destroyed the check intend- 
ed by the Legislature upon the Surveyor's de- 
partment. And in the view of this Council, it 
was a disposition of the public money not intend- 
ed or authorized by the Legislature, as ample 
provision appears to have been made by law for 
compelling the proprietors and inhabitants of the 
several towns to defray the expense of those sur- 
veys. 

On the 15th February, 1782, the Legislature 
enacted, " that all public acts, papers and records 



THOMAS CHITTENDEN. 151 

that belong to the State (excepting the particu- 
lar records and papers of the Council) be deposi- 
ted and remain in the hands of the Secretary of 
State." " That he attest and register charters of 
incorporation, grant copies of all records," &c. 
On the 10th of March, 1T84, the Council resolve, 
" that the Secretary of Council keep in his office, 
all the records, and copies of charter of lands 
granted previous to October, 1781 ;" and that, 
" on account of the disputes respecting bounds of 
townships, which may occasion the alteration of 
some charters already given, he be directed not 
to record any more charters, till the further order 
of Council." 

How the Secretary of State, and Secretary of 
the Council, can both, at the same time, possess 
the records of charters granted previous to Octo- 
ber, 1781 ; or from whence the Council derive 
their power to alter or contravene acts of the Leg- 
islature, when it is by the Constitution made a 
principal part of their duty to see them faithfully 
executed, is beyond our comprehension : nor do 
we readily conceive in what manner charters al- 
ready completed, can, with propriety, suffer an 
alteration. 

On the 9th March, 1784, the General Assem- 
bly, in order to facihtate what had been so- 
long and ardently wished for by them, and every 
good subject of this State, a final settlement of 
the public accounts, to enable the auditors to de- 
tect embezzlements (if any) and the Legislature 
to provide for debts due from confiscated estates ; 
made it the duty of the auditors to call on all per- 



152 MEMOIR Oi' 

sons who had acted in the capacity of commission- 
ers of sequestration, &C.5 for such books, bonds, 
deeds, notes, and papers, as had come to their 
possession by virtue of their appointment ; and the 
said books and papers to inspect, examine, and 
liquidate ; and to record in proper books, the es- 
tates, real and personal, which had been confisca- 
ted ; specifying which had been sold, by whom, 
and whose order, and the several amounts in real 
value. And if the person possessed of any such 
public papers, should neglect to deliver them to 
the auditors, after demand made by them in wri- 
ting for that purpose, he was, by said act, to for- 
feit a sum, not exceeding twenty-five thousand 
pounds. 

The auditors having (as this Council is inform- 
ed) make such demand in wanting, of the Honora- 
ble John Fasset, Esq., for the papers in his cus- 
tody as commissioner of sequestration and sales, 
and he having refused delivering them agreeable 
to the demand, the auditors directed a suit to be 
commenced against him for the penalty contained 
in the act. Subsequent to which, (we do not as- 
sert it was do^e w^ith the view of embarrassing the 
auditors in the performance of their duty, or of 
screening one of their members, but it had this 
efiect,) on the 16th of October, 1784, the Coun- 
cil received papers of this kind from Mr. Fasset, 
(by him declared on oath to be the whole, to the 
best of his knowledge and remembrance,) which 
had come to his hands as commissioner of seques- 
tration, and discharged him therefrom according- 
ly. Of this transaction, (although a quorum of 



THOMAS CHITTENDEN. 153 

inc auditors were then, and for thirteen days af- 
ter, at the place where the Council sat,) the audi- 
tors were kept in profound ignorance ; and if the 
uncommon severity of the season had not prevent- 
ed, the sheriff would have served their writ upon 
Judge Fassct some time after he was discharged 
from the papers by the Council. How the audi- 
tors are now to come to those papers, time must 
discover. 

It appears from the journal of Assembly, that 
in February session, 1782, a grant was made to 
John Wheeler and his associates, of a gore of land 
adjoining Lnnenburgh ; but difficulties having oc- 
curred in ascertaining the precise local situation 
' of Lunenburgh, it appears from the journal of 
Council, that a charter was directed to be made 
out on the 28th of October last, of another gore, 
in lieu of the former, but without a previous grant 
being made by the Assembly. This proceeding 
being so evident an infringement upon the power 
vested in the Assembly, and at so late a period, 
calls for the severest censure of the freemen, and 
of this Council. 

We now beg your attention in a retrospective 
view of such acts of the Legislature as we have 
selected for that purpose, some of which are of 
general concern, and very important in their con- 
sequences, while the operation of others is con- 
fined Avithin narrow limits, and scarcely worthy pub- 
lic notice for any other reason than lest they be 
drawn into precedent. 

We would previously observe, in the words of 
the great Mr. Locke, who, speaking of legislative 

20 



154 MEMOIR OF 

power, lays it down as the fundamental law of all 
commonwealths, " that the legislative cannot as- 
sume to itself a power to rule by extemporary and 
arbitrary decrees, but is bound to dispense law 
and justice, and to decide the rights of the sub- 
ject by promulgated, standing laws, and hnown 
authorized judges. And that men give up their 
natural independence to society, with this trust, 
that they shall be governed by known laws ; other- 
wise their peace, quiet, and propriety, will be in 
the same uncertainty as in a state of nature." 

The first act of legislation we shall notice, is 
the last clause of a statute passed 23d February, 
1779, entitled, " An act making the laws of this 
State temporary ;" by which it is enacted, " That 
no court or justice, shall take cognizance of any 
matter or thing, in which the title of land is con- 
cerned, or in any action of contract, where the 
parties appear to have made a bargain or contract, 
by note, bond, debts, or agreement in writing, or 
otherwise ; any act or law to the contrary not- 
withstanding." This statute, together with those 
other passed from time to time, prohibiting the 
trial of the titles to land, appears to this Council 
to militate a2;ainst the ninth article in the Bill of 
Rights, which is expressive of the design of form- 
ing social compacts, viz. : " That every member of 
society hath a right to be protected in the enjoy- 
ment of life, liberty, and property," — against the 
thirteenth article in the Bill of Rights, " That, in 
controversies respecting property, and in suits be- 
tween man and man, the parties have a right to a 
trial by jury, which ought to be held sacred :" 



THOMAS CHITTENDEN. 155 

and also against these words of the XXIIId sec- 
tion in the Frame of Government,—" All courts 
shall be open, and justice shall he impartially ad- 
ministered, without corruption or unnecessary de- 
lay." 

AVe would ask how property is to be legally 
protected, if not by the several courts of justice, 
according to the known laws of the land V ^ Hoy/ 
parties can be said to enjoy their right of trial by 
jury, when the Legislature prohibits a trial of any 
kind ? And how courts can with propriety be 
called open, within the meaning of the Constitu- 
tion, or justice be administered therein impartially 
without unnecessary delay, when they are disen- 
abled to take cognizance of any matter wherein 
the title of land is concerned, and of any action 
founded upon a contract ; which are nine tenths 
of the causes where justice is sought? How far 
the singular condition of real property within this 
commonwealth, and our peculiar political situa- 
tion, ought to extenuate shutting the courts of 
justice with respect to landed property, is with 
you to decide : but a Legislature's preventing 
suits being brought upon all private contracts, is 
an unheard of transaction, and one which we pre- 
sume will not be accounted for by the impartial 
world, and by posterity, upon principles very hoi 
orable to the promoters of it. 

The laws to prohibit the judicial courts tryin 
land titles, above alluded to, passed 22d October, 
1779^_8th November, 1780,— oth March, 1784, 
and 29th October, 1784. 

The act passed by the Legislature on the 22d 



a- 






loG ME.MOIR OF 

of October, 1779, " appointing commissioners for 
the better regulating titles of land "within this 
State, and declaring their power," (although this 
Council is not informed that any trials in pursu- 
ance of it have been completed,) ought not to es- 
cape your notice. 

This act appoints five persons, commissioners, 
any three of whom are empowered to take into 
consideration, and fully examine, all the evidence 
relating to, or respecting, the title of controverted 
lands in this State : to sends for persons ; to ad- 
minister oaths ; to call upon the parties for char- 
ters, patents, deeds of conveyances, &c. to exam- 
ine the parties upon oath. And they were to 
make report to the Assembly, at their next ses- 
sion in October, which of the various claimants to 
the same land, ought, in justice and equity, to 
possess, and forever hold the fee of, said land, &c. 
The act prescribes a mode of process for conven- 
ing the parties, makes provision for hearing them 
for and against the report of the commissioners, 
and declares, that the resolution of the Assembly 
thereupon (w^hen recorded) shall be an indisputa- 
ble title to the lands, against all parties in the 
trial. 

It is very useful for all public bodies, whether 
consisting; of one, or many natural ones, whose 
power is short of despotic, to wish for an increase 
of it ; and to aim at that object as invariable as 
the needle, without obstruction, points to the pole. 
Here was an extensive grasp at the agreeable de- 
sideratum of uncontrolled dominion : trials by ju- 
ry, in the most important disputes concerning 



TIIO^IAS CUITTEXDEX. 157 

property, wholly thrown aside : the Legislature 
assuming to themselves the judicial power, so far 
as respected all the permanent property in the 
State, and casting aside all restraints of law in 
their decisions, they were to determine every 
cause, Avithout being shackled with rules, but by 
their crude notions of equity ; or in other words, 
according to their sovereign will and pleasure ; by 
which means, all the landed interests in the com- 
monwealth (which, in other nations and States, 
has constantly been viewed as sure and perma- 
nent to the owner) would be at the disposal of 
the legislators, and the surest title to an estate in 
Vermont would be the favor of its assembly : and 
this chain of adamant would be effectually riveted, 
as redress (without a dissolution of government) 
could not be expected ; none but the Legislature, 
whose interest it would be to withhold it, beins; 
competent to give it. 

What means were made use of by a kind over- 
ruling providence to prevent this law being car- 
ried into execution we have not learned, but have 
much reason to be jzratefnl for the event. 

The last preceding observations render it un- 
necessary to say any thing more respecting an act 
passed October 22d, 1779, entitled, " An act 
constituting the superior court of equity, and de- 
claring their power ;" and an act passed 22d 
February, 1781, " For quieting disputes concern- 
ing landed property ;" than that they appear to 
have originated from tho same source ; and were 
designed to exalt the legislative, at the expense 
of the judicial department ; as the former gives 



158 MEMOIR OP 

the Governor, Council, and Assembly, the pow- 
ers of a court of chancery, in all causes exceed- 
ing four thousand pounds consequence, and the 
latter erects them into a court for the decision of 
all disputes between , proprietors holding under 
different charters issued by the same authority. 

The several statutes passed for obliging credit- 
ors to accept the produce of the country, in lieu 
of money, are also considered by this Council as 
violations of that protection, which, by the gener- 
al and fundamental laAvs of society, and by the 
ninth article in the Bill of Rights above mention- 
ed, every individual has a right to expect for his 
property, upon his entering into civil society. 
We leave them however, (if that can be the case,) 
to be justified by the extremity of the times, and 
hope for better, when such expedients shall be 
thought unnecessary. 

The act alluded to in the last preceding obser- 
vation, passed 21st June, 1782 ; and 25th Febru- 
ary, 1783. 

The act to suspend prosecutions against Joseph 
Farnsworth, Esq., passed 29th October, 1764, 
is also esteemed by this Council to merit the seri- 
ous attention of the freemen of a commonwealth, 
•which has yet a character to gain amongst the 
Jdngdoms and States of the earth. It declared, 
" That no actions should be commenced, prosecu- 
ted, or proceeded in, against Joseph Farnsworth, 
Esq., commissary-general of purchases, for con- 
tracts made by him in his public capacity, as 
commissary-general, until the rising of the Legis- 
lature in October then next." 



THOMAS CHITTENDEN. 159 

It is the undoubted duty of the Legislature, 
•when there is an absolute necessity of substituting 
credit for money, to doit Avith as much caution as 
a prudent man would in his private affairs ; and as 
carefully to guard against a diminution of that 
credit, by providing means of payment at the 
prefixed time, as a discreet merchant would in his 
mercantile transactions ; and if a State is deficient 
in these prudential maxims, the odium ought to be 
proportionate to the magnitude of the consequen- 
ces. 

It is therefore, with real concern this Council 
observes, that so many precedents have been af- 
forded of late years, in this western hemisphere, 
of breach of contracts made on behalf, and author- 
ity of, the pubUc, as with many, in a great degree 
to sanctify the measure ; and that, after proceed- 
ing from one delusion to another, it has terminated 
in the almost loss of public credit. And it is with 
equal satisfaction we have remarked that this 
State has, in general, shewn an honest disposition 
in fulfilling its contracts with individuals, so far as 
has been in the power of government, by paying 
them something of real value. This the Legisla- 
ture has been enabled to perform, by levying tax- 
es in some degree proportionate to the public ex- 
penses, and enforcing the collection of them : and 
if the exigences of the community have necessita- 
ted the contraction of debts, the good disposition 
manifested in discharging those debts, has preserv- 
ed our public credit with individuals ; and the 
trifling depreciation, which the public securities- 
of this State have at times undergone, has pro- 



KJO MExMOIK OF 

ceeded rather from scarcity of specie, and the ex* 
ample of surrounding States, than a fear of their 
being redeemed at their original value. 

The act above mentioned in favor of Mr. Farns- 
worth, is considered by this Council as one stride 
towards the destruction of that credit ; and the 
more injurious to the persons interested, as they 
must have waited a considerable time upon the 
public, before passing this act. A few more legis- 
lative procrastinations would have taught individ- 
uals the folly of trusting their property wltere the 
power and dis2:)osition to evade _2-?a^??2e7ii uere 
united. 

It behooves the freemen, in the opinion of this 
Board, as a matter of the last importance, to keep 
a watchful eye over every step of government 
■which tends to sap public credit, and to manifest 
their severest resentment thereat. 

We cannot dissolve this Council of Censors, with 
the pleasing satisfaction of having conscientiously 
discharged the trust reposed in us, if we omit no- 
ticing (however disagreeable it may be to many 
influential persons in this commonwealth) a law 
passed by the Legislature in their last session, un- 
der the title of, " An act for settling disputes re- 
specting landed property." This Council is of o- 
pinion, considering the various difficulties of com- 
ing to the knowledge of a title to lands in this 
commonwealth, which originated from, and have 
been cherished by, the contentions of different 
States claiming this territory, it is equitable that 
provision should be made by the Legislature, in 
favor of persons who made bona fide purchases 



l^SOMAS CHITTENDEN. 16l 

irom pretended owners, wliile it was out of their 
power to know with certainty in whom the title 
was vested ; (though we cannot agree in sentiment 
with the Legislature, that the detrauded purchas- 
er should be allowed to recover his damages, both 
from his voucher and the owner of the soil.) But 
that trespassers, who have no pretence of a title, 
should by legislative authority, be enabled to re- 
cover from the legal owners, (who, in numberless 
instances, have been kept out of possession, sore- 
ly against their will, and to their great impover- 
ishment,) the value of their improvements, is sanc- 
tifying iniquity by law ; and, by Sipost facto act, 
depriving the owners of such property, of the 
right of action against the trespassers : (wliich 
remedy, when the intruder has done more injury 
than benefit to the farm, it is equitable the owner 
should have :) and it is giving a reward to persons 
for transgressing the laws. In whatever light 
this part of the act is viewed, it may truly be said 
to be unprecedented and unparalleled ; and will, 
unless revised and materially altered, be an indel- 
ible blot in the annals of our history, afford our 
enemies the most solid argument they have yet 
offered against the reasonableness of our existence 
as a sovereign State, and be the greatest induce- 
ment to our friends to desert us, as having too 
much cunning, to hold the reins of an independent 
government. 

"We are sorry occasion is afforded for remark, 
that the Legislature, especially in the former part 
of the septenary, have in some instances deviated 
from the humane spirit manifested in the XXVIth 

21 



162 MEMOIR OF 

section of the Frame of Government ; that by dp 
recting corporal punishment to be inflicted for 
offences not infamous in their natures, that chas- 
tisement is rendered less disgraceful to the dehn- 
quent, and less beneficial to society, "where the 
crimes require it. 

Nor ought the fickleness of the Legislature, and 
their want of deliberation in passing laws, to es- 
cape the observation of this Council. Few acts, 
of general concern, but have undergone altera- 
tions at the next session after the passing of them ; 
and some of them at many different sessions : the 
revised laws have been altered — re-altered — made 
better — made worse ; and kept in such a fluctua- 
ting position, that persons in civil commission 
scarce know what is law, or how to regulate their 
conduct in the determination of causes. If the 
Legislature in this particular have mtended to be 
faithful guardians of the people, they have acted 
as very unsteady or improvident ones. 

It is the opinion of this Council, that the Gen- 
eral Assembly, in all the instances where they 
have vacated judgments, recovered in due course 
of law, (except where the particular circumstan- 
ces of the case evidently made it necessary to 
grant a new trial,) have exercised a power not 
delegated, to them, by the Constitution. This 
mode of proceeding is an assumption of the judi- 
cial power in the last resort, and renders nugatory 
that important article in the Bill of Rights which 
provides, " That in all suits between man and 
man, the parties have a right to a tried hj jury, 
which ought to he held sacred,''^ It supercedes 



THOMAS CHITTENDEN. 



163 



tlie necessity of any other law than the pleasure 
of the Assembly, and of any other court than 
themselves : for it is an imposition on the suitor, 
to ffive him the trouble of obtaining, after several 
expensive trials, a final judgment agreeably to 
the known established laws of the land ; it the 
Leo-islature, by a sovereign act, can interfere, re- 
verse the judgment, and decree in such manner, 
as they, unfettered by rules, shall think proper. 
If such is their constitutional authority, it would 
be a mercy to prohibit any other persons than 
themselves the exercise of judicial powers. The 
le<^islative body is, in truth, by no means compe- 
tent to the determination of causes between party 
and party, nor was, by our Constitution, or that 
of any other country who make pretence to free- 
dom, ever considered so (not taking mto view the 
amazing expense it would bring upon the pubhc, 
and the disadvantage of its engrossmg that 
time which ought to be occupied in their more im- 
portant and proper employment of legislating.) 

If one set of men are to enact and execute our 
laws, and when they do not find one to answer^ a 
particular purpose, to make it, instanter ; or in 
other words, if they are to possess all the author- 
ity as judges, which they, as legislators, are pleas- 
ed, from time to time, to confer on themselves, 
unhappy indeed is the lot of this people. ^ 

The instances alluded to of judgments being 
vacated by legislative acts are as follows, viz., 
"An act to set aside, and render null and void in 
law, a certain order therein mentioned," passed 
6th March, 1784 ; " An act to reverse the several 



164 MEMOIR OF 

judgments therein mentioned," passed 9th March, 
1784 : " An act to secure Daniel Marsh in the 
possession of a certain farm, until he shall have 
opportunity of recovering his betterments, and 
nuUifying several judgments rendered against 
him," passed 18th June, 1785 : and, " An act 
confirming Andrew Graham, of Putney, in the 
county of Windham, in the quiet and peaceable 
possession of the farm on which he now lives, in 
said Putney ; and rendering all judgments re- 
specting the possession of the same, heretofore had 
and rendered, by any court of law whatever, null 
and void ;" passed 18th June, 1785. 

Similar to annulling judgments, is the power 
exercised of staying executions after judgments 
rendered ; of which, in reviving the acts of leg- 
islation, we find two instances : one entitled, " An 
act to stay the execution on a judgment given by 
the superior court, against WitherlyWittum,Mal- 
achi Wittum, and AVitherly Wittum, Jun., in fa- 
vor of David Caswell and Thomas White," passed 
25th February, 1782 : the other passed March 8, 
1784, entitled, " An act to stay an execution, and 
grant a sum of money for the purpose of paying 
and satisfying the said execution." [The title of 
this last act, it is to be observed, carries a greater 
shew than substance of equity in it : the State 
was obliged in honor, and by promise, to indem- 
nify the defendants : the act, after judgment, 
constrained the creditor to take public securities 
at par, both for his damages, and a large bill of 
costs expended in the suit.] 

Granting pardons by the Legislature, (except 



THOMAS CHITTENDEN. 1G5 

in cases of impeacliment, and perliaps in those of 
treason and murder,) is an evident infringement 
upon the constitutional prerogative of the execu- 
tive Council, and as such, ought not to escape 
your notice. Yet we find this power exercised 
by the Assembly on the 26th of October, 1784, 
in the way of resolution (which was exceptionable 
for the mode, if on no other account) in the fol- 
lowing words, viz. : " Resolved, that Lemuel 
Roberts, and Noel Potter, be, and they are here- 
by pardoned (on account of their former merit and 
present submission) for their offence against the 
peace and dignity of the freemen of this State, in 
being concerned in, and leading on in a riot, for 
rescuing one Carr, out of the hands of the Sheriff's 
deputy, some time in May last." 

If the exercise of this power had been left in 
its constitutional channel, /ormer merit and j^res- 
ent submission might, perhaps, have been consid- 
ered as proper reasons for mitigating the fines, 
but not for complete pardons, in crimes tending 
to the dissolution of government. 

Although this Council conceives the check in- 
tended by the XlVth section of the Frame of 
Government, if carried into execution, to be very 
inconvenient in practice, and expensive to the 
State ; yet, while thetConstitution absolutely re- 
quires bills of a public nature to be printed for the 
consideration of the people, before they are passed 
into laws, we cannot esteem the legislature excu- 
sable in omitting it ; and the notion of treating the 
general system of our statutes as temporary, we 
consider as an evasion of an article in the Consti- 



166 MEMOIR OF 

tution, thought by the Convention to be of impor- 
tance. 

On the 28th of February, 1782, the Legisla- 
ture passed a law, entitled, " An act empowering 
Colonel Samuel Robinson, to give a deed of the 
lands hereafter described, to the heirs of William 
Emms, deceased ; and vacating a certain deed of 
the premises obtained in a fraudulent manner, by 
John Blackledge Emms, from said Samuel Rob- 
inson." This Council cannot here omit observing 
in addition to the reason already given against the 
Legislature's exercising judicial powers, and rever- 
sing judgments, that the practice of legislating 
for individuals, and for particular cases, is much 
too frequent. If a subject feels himself aggriev- 
ed, and thinks the law incompetent to give him 
redress, he immediately applies to the Assembly ; 
and too often, laws are suddenly passed upon such 
application, to relieve in particular cases, which 
introduce confusion into the general system, or are 
afterwards discovered to be wholly unnecessary. 
The act last mentioned (admitting the Legislature 
to be a proper court for determining whether a 
deed was fraudulently procured) was entirely 
needless; — the supreme court, possessing the 
powers both of law and equity, being able to give 
proper relief in this and all other cases of fraud. 
When a person obtains a property, which the law 
of the land at the time of acquiring it, esteems a 
legal and equitable estate, if he is divested of it 
by a sovereign act of power, he has a right to 
complain of the injury ; and all men of interest 
have a right, and it is their duty, to be alarmed 



THOMAS CHITTENDEN. ICT 

at tlie precedent : if this was not the case, Colon-- 
el Kobinson ought not to have applied to the As- 
sembly, or thej to have interfered. 

That part of the act passed in the last session 
of the Legislature, for erecting the new county of 
Addison, which authorizes the Governor and his 
Council to appoint county officers therein, for the 
time being, is esteemed by this Board to be an un- 
necessary violation of the XXVIIth section of the 
Frame of Government. We are unable to imag- 
ine the particular circumstances of this part of the 
commonwealth to have been such, as to require a- 
dopting so extraordinary a measure, for any other 
purpose than to give a lead at some future coun- 
ty election. 

In our enquiries whether " the public taxes 
have been justly laid and collected in all parts of 
this commonwealth ; we must offer it as our opin- 
ion, that neither has been fully the case. With 
regard to the equal collection of them, so many 
occurrences have intervened, known to the free- 
men at large, that the executive part of govern- 
ment does not appear greatly deserving of censure 
for their remissness in this respect ; but in appor- 
tioning the taxes, this Council does not believe 
full justice has been done : all our towns are new 
and a part of the most populous ones still uncul- 
tivated ; — tradesmen of all kinds, and men of ge- 
nius, are every where much wanted : — it must not 
certainly be therefore, as " good guardians of the 
people ,'' iha^t faculties are rated^ and unimproved 
reel 'pro^^erty ^ and articles of luxury^ left without 
assessment. In the opinion of this Council, visi- 



1(33 MEMOIR OF 

})le property, in proportion to its real value, is the 
only fit subject of taxation (except the Legislature 
shall find it expedient to impose a small tax on 
polls, not minors, for personal protection) ; and 
every deviation from this rule, whether to excul- 
pate one class of men, or to harrass another, is an 
error in government, and ought to be exploded 
in our future system of taxation. 

One branch of the duty assigned this Council 
is to enquire " in what manner the public monies 
have been disposed of." In discharging this part 
of the trust reposed in us, we cannot omit men- 
tioning the dissipation of a considerable part of 
the public lands in this State, at so early a period 
that settlements could not be made, before the 
conclusion of the war ; and at a time when actual 
surveys could not be performed: by which means 
an ample foundation is laid for the confusion pro- 
ceeding from interfering grants — a door open 
for a variety of lawsuits, and applications to the 
Legislature to procure compensation for lands 
which the grantees are unable to hold ; and the 
public is deprived of a fund, which, if rightly 
managed, would probably defray the ordinary ex^ 
penses of government. The ungranted and con- 
fiscated lands seem to have been a boon conferred 
by Providence, for the support of our repubhc in 
its infancy, while its subjects were unable to pay 
taxes ; yet the first septenary has seen the whole, 
or nearly the whole of them, squandered ; and the 
inhabitants will have reason to think themselves 
peculiarly fortunate, if they yet escape paying 
considerable sums on account of them. How far 



THOMAS CHITTENDEN. 16S 

the peculiar difficulties the State has been obliged 
to struggle through, ought to excuse this lavisl^ 
disposition of the public property, must be deci- 
ded by you, to whom all officers are mediately, or 
immediately, accountable for their conduct. 

This Council is not insensible that the freemen- 
look to this Board for information, with respect to 
the confiscation and sale of the estates of persons 
who joined the enemy ; and are unhappy, that, af- 
ter obtaining all the light in our power, we think 
it most prudent to refer them to such report as 
the auditors shall make on this subject. And we 
are also unhappy, that, being destitute of a com- 
plete state of the public accounts from the audi- 
tors, (which we have repeatedly requested of 
them,) it is out of our power to make further en- 
quiries in what manner the public monies have 
been disposed of. Nor ought this Council here 
to omit noticing that the General Assemblies, pre- 
vious to February, 1784, are, in the idea of this 
Council, highly censurable for omitting to enact 
laws adequate to compel the liquidation of the 
public accounts : and that the Council are not free 
from blame for the appointment, and continuance 
of persons in office of great public trust, who did 
not keep regular books : by which means (we con- 
clude, from the information of those auditors who 
have taken an active part in the business) sever- 
al public accounts of a very important nature, 
can never be properly adjusted ; and the default- 
ers of unaccounted thousands will probably re- 
serve them for their families. 

We have now, in an imperfect manner, finished 

22 



170 MEMOIR OF 

the important and invidious task allotted this 
Council — censuring the proceedings of the su- 
preme legislative and executive branches of gov- 
ernment, composed of gentlemen of the best char- 
acters, and greatest influence, in the common- 
wealth. A principle of duty has led us to speak 
our sentiments with a freedom, which, we are not 
insensible, will be disagreeable to many : but as 
we have been actuated solely by a desire of con- 
tributing eur mite to the honor and felicity of the 
community, and are conscious of no sinister or 
personal motives in our proceedings, we cheerfully 
submit our opinion to your candid consideration ; 
and if we are so unhappy as materially to differ 
in sentiment from that respectable body, the free- 
men of the State of Vermont, we must console 
ourselves with the pleasure of having meant well, 
and that it is the lot of humanity to err. 

By order of the Council of Censors, 

INCREASE MOSELEY, President, 

Bennington, 14th Eebruary, 1786. 

I insert tlie above address to the people, as 
it contains a history of our legislation, and will 
be interesting to the reader. Some of the pro- 
posed amendments, however, require particular 
attention. The amendment reducing the number 
of representatives to fifty, to be apportioned to 
the several cpunties according to the population, 
•was rejected by the Convention, as all gimilar 



THOMAS CHITTENDEN. 171 

ereigns, and propositions have been in the other 
New England States.* 

Some other amendments which were adopted 
will be noticed in the next chapter. 



CHAPTER YIII. 

Amendment of the 4th section in the Bill of Eights, and of the 
16th section in the Frame of Government. — The Assembly- 
denied the right of the Council to originate bills. — They 
pass suspended bills without sending them to the Governor 
and Council. — Vermont acceded to the Union.— Council of 
Censors elected at the end of the second Septenary. — 
They proposed amendments and called a Convention. — 
Kesiguatiou and death of Gov Chittenden. 

Among the amendments which were adopt- 
ed by the Convention, was the addition of the 
following section to the Constitution : " The 
legislative, executive, and judiciary depart- 
ments shall be kept separate and distinct, so 
that neither exercise the powers properly be- 
longing to the other." But, it seems, the Coun- 
cil has not drawn a very clear line of distinction 
between legislative and judiciary powers, for they 
say, in their address to the, people, " Itis the opin- 
ion of this Council that the General Assembly, in 
all cases where they have vacated judgments, re- 

^*See Appendix, No. 3. 




1T2 MEMOIR OP 

covered in due course of law, except when the 
particular circumstances of the case evidently 
made it necessary to grant a new trial, have ex- 
ercised a power not delegated or intended to be 
delegated to them by the Constitution." This 
served to continue the practice of granting new 
trials by the Legislature, and they exercised the 
power for a number of years. 

But as the people gradually obtained a more 
correct knowledge of the principles of the govern- 
ment, the Constitution was raised to the rank of 
the Supreme law of the State, and being so regard- 
ed by the Legislature, our legislation was great- 
ly improved, and the practice of granting new 
trials was abandoned. 

When the Council came to the 4th section in 
the Bill of Rights, they amended it by inserting 
the words " by their legal representatives," ma- 
king it read as follows : " That the people, by their 
legal representatives, have the sole, exclusive, and 
inherent right of governing and regulating the in- 
ternal policy of the same." 

The rights, the sovereign rights of the people 
were often repeated in the Constitution, and the 
Council observed that many of the people were 
disposed to consider themselves as individual soy- 



St 



THOMAS CHITTENDEN. 173 

to protect themselves in the enjoyment of their 
rights, without recourse to the laws ; and they 
made the amendment to remind them that the 
the people had exercised their sovereignty in form- 
ing their Constitution of civil government, by 
which they had made themselves, one and all, sub- 
jects of that government, and that they must con- 
tinue subject to it, until they should again call 
their primitive sovereignty into exercise, and alter 
or abolish the Constitution. 

Were the same subject now before a Council, 
they would address themselves to the Legislature, 
and remind them that they were vested with the 
whole legislative power of the State ; that they 
cannot delegate their power, nor surrender it to 
the people who conferred it ; that the people had, 
by the Constitution which they had adopted, en- 
tered into a solemn compact by which each individ- 
ual was laid under a legal and moral obligation to 
obey all the laws which should be passed by the 
Legislature, which they had constituted, but no 
one was under any obhgation to obey any law 
which should be passed by the people as in a pure 
democracy. When we formed a representative 
democracy, we considered we had made an im- 
provement upon all civil governments which had 



174 MEMOIR OF 

«ver been instituted. A pure democracy had ev- 
er been destitute of every property of a good gov- 
ernment. The laws were ever in a ruinous state 
of fluctuation, and it utterly failed of protecting 
the people in the enjoyment of their rights. By . 
instituting a representative democracy, we hoped 
to avoid all these evils, but as our government is 
founded on the democratic principle, unchecked 
by any other, that prinpiple is gaining strength, 
and the tendency of the government is towards 
a pure democracy. Both political parties have 
long since discovered this, and it is amusing to 
witness their struggles in the race for popularity 
— both make use of democracy as a condiment, 
with which they season every political dish, and 
democratic is considered a necessary prefix to ev- 
ery party name. The whigs call themselves dem- 
ocratic whigs, and the republicans call themselves 
democratic repubhcans. The next step will be, 
that one of the parties, no one can^tell which, will 
attempt to shoot ahead of their ^opponents by 
assuming the name of democratic democrats. 

Whether this tendency of our government to- 
ward a pure democracy will be for evil or for 
good, we shall be taught by experience. If it 
proves injurious, as we have reason to fear it may, 



THOMAS CHITTENDEN. 175 

the experience and intelligence of the people ^vill 
induce them to retrace their steps, and the gov- 
ernment will be improved and perpetuated. It is 
the natural government of civilized man, and as 
nature ever makes efforts to cure all diseases in 
the human bodj, she will be sure to make efforts 
to heal all wounds in the body politic ; and she 
will effect a cure, if not prevented by quackery, as 
she often is, when making efforts to cure diseases 
in the human body. 

The Convention of 1786 made but one other 
amendment that deserves particular attention. 
The section amended is the 16th section in the 
Constitution, as published in the revised laws, and 
is in the following words : 

"• To the end that laws, before they are enacted, 
may be more maturely considered, and the incon- 
venience of hasty determinations as much as pos- 
sible prevented, all bills which originate in 
the Assembly, shall be laid before the Governor 
and Council, for their revision, and concurrence 
or proposals of amendment ; who shall return the 
same to the Assembly, with their proposals of a- 
mendment (if any) in writing ; and if the same 
are not agreed to by the Assembly, it shall be in 
the power of the Governor and Council to suspend 
the passing of such bills until the next session of 
the Legislature, Provided, that if the Governor 



176 MEiMOlR OF 

and Council shall neglect or refuse to return any 
such bill to the Assembly, -with -written proposals 
of amendment, within five days, or before the ri- 
sing of the Legislature, the same shall become a 
law." 

This amendment was highly important, as it 
conferred powers upon the Council which rendered 
them nearly equal to a co-ordinate branch of the 
legislature, and as a violation of this article by the 
House of Representatives prepared the public 
mind for constituting a Senate. 

The reader has seen that during the first sep- 
tenary bills originated as well in the Council as in 
the Assembly, and that in the year 1T84 an act 
was passed directing the mode of passing laws, in- 
cluding the mode of proceeding with bills origina- 
tino; in the Council, and the clause in the amend- 
ed section " all bills which originate in the As- 
sembly," clearly implies that they might also orig- 
inate in the Council. 

They did not point out the mode of proceeding 
with bills originating in the Council, for they con- 
sidered that already settled by practice, and the 
laws then in force. In the year 1787, there was 
a general revision of the laws, and the statute of 
1784, directing the mode of passing laws was re- 



THOMAS CHITTENDEN. 17T 

enacted, and the same practice was continued du- 
ring the septenary, and until the revision of tlio 
laws in 1797, when the statute directing the 
mode of passing laws was again re-enacted. 

And every bill which had been suspended by 
the Governor and Council, was treated by the 
Assembly as a new bill, and if again passed at the 
next session by the House, was sent to the Gov- 
ernor and Council as other bills. 

It is seen that by the provisions of the section, 
the Governor and Council could in no case sus- 
pend the passing of a bill until they had proposed 
amendments, and they had been non-concurred in 
by the House. This led to some singular amend- 
ments in cases where the Council had no objec- 
tions to the details of the bill, but were opposed to 
the passage of any bill on the subject. To reme- 
dy this inconvenience, the two Houses, at their 
session in October, 1801, concurred in passing an 
act, providing " that when the Governor and 
Council should not," within five days concur in 
passing any bill received from the House of Rep- 
resentatives, such bill may be sent back to the 
House, together with the reasons why the Gover- 
nor and. Council did not concur, whereupon tho 
House of Representatives shall act upon such bill 



178 MEMOIR OF 

in the same manner as though it had been read 
but once in the House, and if, upon reconsidera- 
tion of 'such bill, the House of Kepresentatives 
shall pass the same, it shall be returned to the 
Governor and Council for their revision and con- 
currence, or proposals of amendment, and the bill 
shall be considered in the same stage as it Tvas 
■when first sent to the Governor and Council." 
The concurrence of the two Houses in passing the 
several acts directing the mode of passing laws, 
especially the last, clearly proves that they acted 
cordially together until long after the external 
pressure had been removed by a settlement of the 
controversy "with New York, and after political 
parties were well organized. This only proves 
that time is required to break up old habits, or 
■we might rather say, for old habits to pass away, 
"with the generation which they had influenced, for 
there is never any great change in the habits of 
the same generation. But when a new genera- 
tion began to appear in the Assembly, a change 
became visible, and the defects in the Constitu- 
tion became more and more apparent. And as 
the political parties found it to be for their inter- 
est to promote young men, active and full of zeal, 
they sent young men to the Assembly, and the 



THOMAS CHITTENDEN. 179 

House "was soon filled •with a new generation, "wlio, 
instead of being disposed to act in concert with the 
Council, began to encroach on their powers. It 
has ever been so. The most numerous branch of 
the Legislature consider themselves as the peo- 
ple collected in a body, and are disposed to exer- 
cise all the power which such a body would in 
fact possess. Besides, it is the business of leg- 
islators, not to enquire what the law is, to -seek 
for a rule bj which their conduct is to be governed, 
but to say what the law shall be, and they naturally 
acquire a habit and temper of mind adverse to all 
control or "limitations of power. 

The first encroachment on the powers of the 
Council, by the House of Representatives, was a 
denial of their right to originate bills, and a refu- 
sal to receive and act upon such bills. But the 
House of Representatives did not assume the 
whole legislative power of the State until thfe year 
1826, when they passed a suspended bill, and re- 
corded it as a law, without sending it to the Gov- 
ernor and Council. Then the check upon the 
House of Representatives, provided by the 16 th 
section, proved wholly insufficient. 

The first Council of Censors proposed several 
important amendments, by which they proposed 



180 MEMOIR OF 

to reduce the number of Representatives in the As- 
sembly to fifty, to be elected by county conven- 
tions or by districts, and they proposed to elect 
the members of the Council, by counties. Now 
we do that Council of Censors great injustice, 
if we say they were unwise in considering that 
the provision of the 16th section would be a suf- 
ficient check upon the House of Representatives, 
for if the number of representatives had been 
reduced to fifty, and the members of the Council 
had been elected by counties as provided by the 
the Council of Censors, the House of Representa- 
tives might have encroached on the powers of 
the Council. The members of .the Council, be- 
ing elected by general ticket, knew that their re- 
election depended on the good will of the mem- 
bers of the House — they were thus responsible to 
the members of the House instead of the people. 
It would not therefore be expected that the Coun- 
cil would prove a very powerful check upon the 
House of Representatives. Accordingly, as soon 
as the habit of acting in concert had passed away, 
the Council were very cautious in proposing a- 
mendments to any bill from the House, and they 
were naturally inclined to recede, in case their a- 
mendments were non-concurred in by the House. 



THOMAS CHITTENDEN. 181 

This course naturally lessened the respectabil- 
ity and influence of the Council, especially with 
the House of Kepresentatives, and hastened the 
time when the Council should be divested of that 
power which they were afraid to exercise. 

The reader has noticed the very different opera- 
tion of the Constitutions of Vermont and Pennsyl- 
vania, although they were very nearly the same. 
This reminds us of the trite observation, that no 
Constitution can be so framed as to be equally 
fitted to promote the happiness of every people, 
and we have seen, by the operation of the Consti- 
tution of Vermont, that such may be the state of 
society, condition and habits of a people, that they 
may enjoy the blessings of a good government un- 
der a Constitution in any form, provided it be 
founded on the sovereignty of the people. Penn- 
sylvania was a wealthy state at the time they form- 
ed their Constitution, and they had under their 
colonial government many lucrative oflSces, and, of 
course, were divided into political parties. These 
offices were so eagerly sought, that party spirit 
had taken the place of patriotism, and produced 
a division in the Convention which adopted the 
Constitution, and prevented an amendment of it at 
the end of the first septenary. But before the 



182 MEMOIR OF 

end of the second septenary, such had been the 
violence of the Legislature, consisting of one nu- 
merous Assembly without any check upon it, and 
so much corruption had been witnessed in the ex- 
ercise of the power of appointment, by a numer- 
ous executive, that the people become alarmed, 
and both parties united in framing a new Consti- 
tution, with only one dissentient. 

Gov. Chittenden was again re-elected by the 
people, and continued in office until the year 1786, 
when there was no choice of Governor by the peo- 
ple. Gov. Chittenden had a plurahty of votes, 
but the Legislature elected Moses Robinson for 
Governor. 

The friends of Gov. Chittenden were strongly 
attached to him, and being highly exasperated, 
accused the Legislature of disregarding the voice 
of the people, and turning out an old and faithful 
public servant against their wishes, and they suc- 
ceeded in producing a high degree of excitement 
among^ the people. The consequence was, that 
the next year Gov. Chittenden was elected by a far 
greater majority, than that of preceding years. 

The controversy with New York having been 
adjusted, the Legislature called a Convention to 
decide whether Vermont would accede to the Un- 



THOMAS CHITTENDEN. 183 

• 

ion. The Convention was holden at Benningtonj 
on ihe 6th of January, 1791. Gov. Chittenden 
was President of the Convention, and threw the 
whole weight of his influence into the federal 
scale. After a session of four days, the Conven- 
tion resolved, yeas 105, nays 2, that application be 
made to Congress for the admission of Vermont in- 
to the Federal Union. And on the 18th day of Jan. 
1791, the Legislature, in order to carry into ef- 
fect the foregoing resolution, appointed Nathaniel 
Chipman and Lewis R. Morris to attend Congress, 
and neo:otiate the admission of Vermont into the 
Federal Union, and on the 4th day of March, 
1791, Vermont became one of the United States 
of America. 

At the expiration of the second septenary, the 
following persons were elected members of the 
Council of Censors : Daniel Buck, Orlando Bridg- 
man, Benjamin Burt, Elijah Dewey, Jonas Galu- 
sha, Anthony Haswell, Roswell Hopkins, Samuel 
Knight, Beriah Loomis, Samuel Mattocks, Elijah 
Paine, Isaac Tichenor and Jno. White. 

At the close of their deliberations, they made 
the following address to the people : 

In Council of Censors, Nov. 30, 1792. 
To the Freemen of the State of Vermont : 



184 MEMOIR OP 

We have now the honor to submit to jour con* 
sidera-tion such amendments in the Constitution of 
this State, as have appeared to us the most advi- 
sable. 

Sensible that experience alone can evince the 
utility of political institutions, we have directed 
our attention rather to remedy the few inconven- 
iences which have been found in the present Con- 
stitution, than to introduce theoretical improve- 
ments, the issue of which might be doubtful, and 
perhaps might have a tendency, in the end, to 
mar that political happiness which we have alrea- 
dy attained. 

One inconvenience we conceive to be, the vest- 
ing of all legislative power in a single and numer- 
ous body. Their numbers, which are necessary, 
in order fully to comprehend all the national in- 
terests, passions, manners and sentiments to which 
laws ought to be adapted, tend to encumber dis- 
cussion, and subject such legislatures, frequently, 
to hasty and crude determinations. This we have 
apprehended to be a principal reason, why so 
many amendments, explanations, and alterations, 
have been constantly found necessary, in our 
laws. To remedy these inconveniences, by intro- 
ducing a more deliberate discussion, in the pro- 
ceedings of the legislature, we have proposed the 
addition of a Senate, who shall have distinct pow- 
er, and an equal voice, in all affairs of legislation. 
To facilitate their deliberations, they are to be 
less numerous than the House of Representatives : 
we have taken care, nevertheless, that the Senate 
shall be, in the fullest sense, representatives of 



THOMAS CHITTENDEN. 185 

the people, and amenable to them, for their con- 
duct, as much as the members of the other branch ; 
and have so provided for their election as to give 
a different combination, and more collective view, 
of the interests which they represent : — this, we 
conceive, will introduce more deliberation into the 
business of legislation, and give to each branch 
an opportunity of correcting many errors, which 
may otherwise escape attention. 

We have thought it inconsistent with the prin- 
ciples of a free government, that the executive 
should have a negative on the proceedings of the 
legislature ; nevertheless, as the executive have 
an opportunity of observing all difficulties, which 
arise in the execution of laws, and are the centre 
of information, upon that subject, we judge it nec- 
essary, that the legislature should be availed of 
such information : — we therefore propose, that all 
acts, before they pass into laws, shall be laid be- 
fore the executive for revision : they are, however, 
to make no leading propositions, but simply to 
state their objections, if any they find, with their 
reasons, in writing, to the legislature ; who still 
are to have the sole power of passing laws. 

The other amendments are such, as, we are in- 
duced to beheve, will better explain the several 
articles, and prevent the passing ex post facto 
laws, and make the practice, in the different 
branches of government, more uniform. 

In examining the proceedings of the legislative 
and executive departments of this government, du- 
ring the last septenary, we are happy to find no 
24 



18B MExMOlR OF 

proceedings \Yhich we judge unconstitutional or 
deservin2: of censure. 

The several taxes, in our opinion, have been 
justly laid ; except where the legislature have 
doomed, in a few instances, towns, more than the 
amount of their lists, as returned by the Hsters ; 
which has thrown an unequal burden on the col- 
lectors of those towns. — -The public monies, we 
find, have been expended with economy ; and the 
several taxes have been generally collected. 

On a retrospective view, it gives us much 
pleasure to observe the many valuable improve- 
ments which have been made in this government, 
since the first formation, and the mild and equal 
energy, which, by such improvements, has been 
added to the administration, and the increasing 
happiness of the citizens, in the security of their 
rights. 

It has been our anxious endeavor, to add some- 
thing to those improvements. — Our arrangements, 
on this head, we now submit, to the consideration 
of an enlightened community ; to judge of their 
tendency, whether they are calculated, in whole or 
in part, to add any thing to tho improvement of 
our present system, to give a further security to 
t^e rights, and an increase of happiness to the 
people. 

By order of the Council, 

. SAMUEL KNIGHl', President. 

Attest, Eos. Hopkins, Sec. 

The improvements of the Constitution, referred 
to by the Council in their address to the people, 



THOMAS CHITTENDEN. 187 

consisted of such amendments as to make an en- 
tirely new Frame of Government, and having in- 
corporated the amendments, the revised Constitu- 
tion was pubhshed for the consideration of the 
people. It would occupy too much space to give 
a copy of the revised Coni5titution, I therefore 
give only the following abstract of those provis- 
ions which materially varied it from the Constitution 
then in force. 

The Council proposed that the supreme legisla- 
tive power should be vested in a Senate ai#d 
House of Representatives : — that, for the first 
septenary, the Senate should be composed of mem- 
bers from, and to be elected by, the several coun- 
ties, as follows, viz. : — Bennington and Orange 
counties, each, two ; Windham, "Windsor, and 
Rutland, each, three ; Addison and Chittenden, 
each, one, and every new county, which might be 
thereafter organized, one ; and that, after the first 
septenary, each county might elect one senator 
for every eight thousand souls in such county ; 
and that any county containing a less number, 
might elect one. The votes for senators w^ere to 
be taken on the first Tuesday in September, an- 
nually, and returned to, and canvassed by, the 
judges of the county court. — That the judges of^ 
the county courts shall be ineligible as senators, 
and that senators should be incapable of holding 
any office in the judiciary department. 

The House of Representatives, it was proposed, 



188 MEMOIR OF 

should consisfe of one member from each town, con- 
taining, at the time of election, forty families ; and 
that the freemen of any two or more towns that 
might, together, contain forty families or upwards, 
might meet, and elect one representative. 

The Senate and House of Representatives were 
to he styled — The Legislature of the State of 
Vermont. 

To the end that laws might he more maturely 
considered, &c., it was provided that every bill, 
having passed the Senate and House of Repre- 
sentatives, should be presented to the Governor 
and Council for their approbation ; if not approved, 
to be returned, with the objections, in writing, to 
that House in which it originated ; and if, on re- 
consideration, the bill should pass both Houses, it 
should become a law, notwithstanding the disap- 
probation of the Governor and Council. 

The supreme executive power was to be vested 
in the Governor, or, in his absence, the Lieuten- 
ant-Governor. 

The Governor, or person acting as such, was 
empow^ered to commission all officers, and to fill 
vacancies ; and to exercise all the other powers 
vested in the Governor and Council by the 18th 
section of the first Constitution ; except that of 
judging in cases of impeachment. 

An advisory Council, consisting of four, were 
to be annually elected by the Senate and House 
of Representatives, in the same manner as judges 
of the supreme court were to be elected ; who 
were to meet with the Governor, at every ses- 
sion, " to advise with him in granting pardons, re- 



, THOMAS CHITTENDEN. 189 

mitting fines, laying embargoes, revising bills," 

&c. &c. 

All commissions were to be signed by the Gov- 
ernor, and attested by the Secretary of State. 

Either House of the legislature were author- 
ized to " nominate or elect," by ballot, judges of 
the supreme court, county courts, and courts of 
probate, major and brigadier generals. Secreta- 
ry of State and sheriffs ; and, without ballot, to 
" nominate or elect " justices of the peace ; and 
transmit such nominations to the other House, for 
their approbation. If the other House should ap- 
prove, the election was thereby consummated. If 
they should not approve, they were to make a 
nomination and transmit it to the House in which 
the nomination originated ; and if both Houses 
' could not thus agree, they should proceed to make 
the election by joint ballot. 

The proposed amendment, depriving all towns 
containing less than forty families of the right of 
representation, produced a high degree of excite- 
ment in the northern part of the State. The set- 
tlement of the four southern counties was very 
little checked by the Revolutionary war, but we 
have seen that the scattered settlers in that part 
of the State were driven from their farms, at the 
commencement of the war, and no settlements were 
made in that quarter until the close of the war, in 
1783. From this time, the settlements rapidly 



190 MEMOIR OF 

increased in that part of the State now comprised 
in the counties of Addison, Chittenden, Franklin, 
Grand Isle, Orange, Washington, Caledonia, Es- 
sex, Orleans, and Lamoille ; and many of the 
towns were organized, and sent representatives to 
the legislature; but a great portion of them con- 
tained less than forty families. There was at that 
time such a rush of settlers into that part of the 
State, that it was then obvious that the obnoxious 
amendment must soon cease to have any effect, 
and it is difficult to account for the very narrow 
view of the subject taken by those who proposed 
and those who so violently opposed it. Nothing 
but local interest could have led to so contract- 
ed a view of the subject. The Council of Cen- 
sors was composed of three members from the 
town of Bennington, and one from Shaftsbury, 
making four from the county of Bennington, three 
from the county of Windham, one from the coun- 
ty of Windsor, two from the county of Omnge, 
and one from the counties of Rutland, Addison, 
'and Franklin. 

The Convention was holden at Windsor, in 
June, 1793. When the members convened, it 
was found that there was a majority from the 
towns north of the counties of Rutland, and Wind- 



THOMAS CHITTENDEN. 191 

sor, and all those, except two, Judge White, from 
Georgia, and Judge Law, from Colchester, voted 
against the principal amendments ; and yet the 
members from the four southern counties were so 
unanimously in favor of them, that after a session 
of about a week, they were rejected by a very 
small majority. Some amendments of minor im- 
portance were adopted, the 17th, 18th, 19th, and 
30th sections were added, and the 26th amended, 
and the Constitution thus amended was adopted, 
and is the Constitution contained in Thompson's 
History of Vermont, and which is, by many, ta- 
ken to be the first Constitution of the State. 
Gov. Chittenden was President of the Convention, 
but he took no part in the debates. It was un- 
derstood that he was in favor of the proposed a- 
mendments, but perceiving that the passions of a 
majority of the members were so highly excited 
in opposition that they could not be adopted, he 
considered it to be his duty to reserve his influ- 
ence for future occasions, when it might be avail- 
able in promoting the public good. 

He met the legislature at the October session 
of 1796, for the last time, and delivered the fol- 
lowing speech, which, as Mr. Thompson, in his 
History of Vermont, remarks, is characterised by 



192 MEMOIR OF 

simplicity, sound sense, and a paternal regard for 
the welfare of the people : 

^' G-entlemen of the Council and Assembly : 

So well known to you are the manifold favors 
and blessings, bestowed on us as a people, by the 
Great Ruler of the universe, that it would be un- 
necessary for me to recapitulate them. I w^ould, 
therefore, only observe, that, but a few years 
since, we were without constitution, law, or gov- 
ernment ; — in a state of anarchy and confusion ; 
at war with a potent foreign power ; opposed by 
a powerful neighboring state ; discountenanced by 
the Congress ; distressed by internal dissensions ; 
■ — all our landed property in imminent danger, and 
without the means of defence. 

Now your eyes behold the happy day, when 
"we are in the full and uninterrupted enjoyment 
of a well regulated government, suited to the sit- 
uation and genius of the people, acknowledged 
by all the powers of the earth, supported by the 
Congress, — at peace with our sister states, among 
ourselves, and with the world. 

From whence did these great blessings come ? 
From God. Are they not worth enjoying ? They 
surely are. Does it not become us as a people to 
improve them, that w^e may have reason to hope 
that they may be continued to us and transmitted 
to posterity ? It certainly does. 

What are the most likely means, to be taken by 
us as a people, to obtain this great end ? — To be 
a faithful, virtuous and industrious and moral peo-^ 



THOMAS CHITTENDEN. 198 

j)le. Does it not bscome us as a legislature, to take 
every method in our power, to encourage virtue, 
industry, morality, religion and learning ? — I 
think it does. Is there any better method, than 
by our own example ; and having a sacred regard 
to virtue, industry, integrity and morality, in all 
our appointments of executive and judicial offi- 
cers ? 

This is the day w^e have appointed to nominate 
all our subordinate executive and judicial officers, 
throughout the state, for the present year. The 
people, by free suffrages, have given us the pow- 
er, and in us they have placed their confidence ; 
—and to God, to them, and to our own conscien- 
ces we are answerable. Suffer me then as a 
father, as a friend, and as a lover of this people, 
and as one, whose voice cannot be much longer 
heard here, to instruct you, in all your appoint- 
ments, to have regard to none but those who 
maintain a good moral character — men of integ- 
rity, and distinguished for wisdom and abilities ; 
in doing this, you will encourage virtue, which is 
the glory of a nation, and discountenance and dis- 
courage vice and profaneness, which are a re- 
proach to any people." 

Soon after this, his health began to decline, and 
the next season, being satisfied that he should nev- 
er again be able to perform any public duties, he 
resigned the office of Governor, and died on the 
25th of August, 1797, in the 69th year of his 
age. Thus a kind Providence prolonged his life, 
25 



194 MEMOIR OF 

until he had the satisfaction to see his beloved 
State rise from a wilderness, sparsely settled by 
the Green Mountain Boys, contending for their 
independence, as a people, into a highly cultiva- 
ted State, holding a high rank among her sister 
States of the Union. What a rich and appropri- 
ate reward for all his noble and patriotic exer- 
tions 1 And he had the satisfaction of knoNving 
that he had toiled for a grateful people, who 
would ever hold him in affectionate remembrance ^ 
as the father af the State. 



CHAPTER IX. 

Origin of Civil Government. — The powers of Government 
necessarily vested in individuals, imtil the people are ca- 
pable of Self-Government. — The people of the British A- 
merican Colonies organized the first Civil Government 
founded on the sovereignty of the people, the natural gov- 
ernment of civilized man, and it will be extended through 
the world. 

Having brought down the history of the Con- 
stitution from its first formation to the close of 
Gov. Chittenden's administration, I shall close 
with some observations on the past, and some con- 
jectures as to the future. I have said that the 
government founded on the savereignty of the 



THOMAS CHITTENDEN. 195 

people is the natural government of man. It may 
be asked how can this be, since such Government 
was never formed until these latter days, when 
the people of the British American Colonies were 
compelled to form such governments. 

A single glance at the origin and progress of 
civil government will furnish an answer to this ques- 
tion, and I can but glance at it merely to call the 
reader's attention to the subject. 

In the origin of civil society, more or less indi- 
viduals associated and acted together in the man- 
agement of their common concerns, and certain 
individuals took the lead, as certain school boys 
take the lead in all their juvenile sports, and these 
individuals acquired an influence which gave them 
command in all their enterprises. In progress 
of time, a right to command was conceded, and it 
became the duty of all to obey. At length this 
right to command descended to the heir — hence 
the hereditary monarchies of Europe. 

In the same manner was the right to govern 
vested in a number of individuals, forming an aris- 
tocracy. 

The people of Europe continued under these 
governments, until they lost all ideas of their nat- 
ural rights, and Trere contented in the enjoyment 



19G " MEMOIR OF 

of such privileges as their sovereigns were gra- 
ciously pleased to grant. But certain causes op- 
erated to ameliorate the condition of the people of 
England. They were restless under the oppress- 
ion of the King and Nobles, and struggled to ob- 
tain their freedom. And they were successful in 
elevating the democracy to a level with the priv- 
ileged order, the King and Nobles ; and finally 
establishing the people in the House of Commons 
as a co-ordinate branch of the Legislature, con- 
stituting a free Monarchy. Under this govern- 
ment, the people of England enjoyed political lib- 
erty — the right of suffrage so far as was necessary 
to secure them in the enjoyment of their civil 
rights ; for in no government were the people 
more perfectly secured in the enjoyment of them, 
and they boasted, as in that age they had reason 
to boast, of their Constitutional rights as English- 
men. 

And those of them who settled the North Am- 
erican Colonies brought with them Constitutional 
rights as British subjects, and in some of the 
Colonies they enjoyed the right of self-govern- 
ment, with very little restriction, and they enjoy- 
ed political liberty in the election of all their pub- 
lic functionaries. This was the case in Connect- 



THOMAS CHITTENDEN. 197 

icut ; consequently their government was undis- 
turbed by the Revolution, and they continued un- 
der their Colonial organization, without any writ- 
ten Constitution until the year 1818. 

In all the other Colonies, except Rhode Island, 
the governments were overthrown by the Revolu- 
tion, and the people were left destitute of any po- 
litical organization. Thus situated, the people 
were compelled to form governments for them- 
selves, without any precedent, without any model 
from the past, and as there were no diflferent or- 
ders in the community, but the whole people were 
on a level, possessed of equal rights, they formed 
their governments on the democratic principle of 
the sovereignty of the people. 

This was the first opportunity which a civilized 
people ever had to form a government for them- 
selves, and as civilization is a state to which man 
naturally arrives by the exercise of those faculties 
with which his Maker endowed him for his im- 
provement, it is properly termed his natural state, 
and the government which he establishes, found- 
ed on his natural rights, may be properly termed 
the natural government of man. The time had 
now arrived, in the order of Providence, when a 
people became capable of self-government, and 



198 MEMOIR OF 

they were placed in sucli circumstances that they 
were under the necessity of trying the experi- 
ment of a government founded on the sovereign- 
ty of the people. 

Now it is clear that no people could be capable 
of self government, until advanced to a high degree 
of civilization, and it is as clear that they nev- 
er could make any advances towards a state 
of civilization, without some kind of organized 
civil government. How manifest, then, is the 
wisdom of the Creator in so constituting man, that 
when societies should be formed and civil govern- 
ment become necessary, the people would submit 
to the government of individuals, until they should 
become capable of self-government. In this view 
of the subject, who can say that the divine right 
of Kings was as useless as it was impious ? So 
long as the people were incapable of governing 
themselves, the powers of government were of ne- 
cesity vested in individuals, who exercised them 
as a matter of right, and very naturally this right 
grew into a divine right. 

To those living under a government thus con- 
stituted, by whose authority alone they had been 
protected against lawless violence, a government 
of the people by themselves would appear like an 



THOMAS CHITTENDEN. 109 

organized anarchy. And though the Colonists had, 
in a good degree, enjoyed the right of self-govern- 
ment, yet, as they were protected in the enjoy- 
ment of their civil rights by the authority of the 
King, and justice was administered in his name, 
their views of civil government, which had been 
jSxed by habit, were not at once entirely changed, 
and many entertained doubts and fears in relation 
to the successful operation of a government by 
the people. But during the war of independence, 
little attention was paid to the operation of the 
State Constitutions, nor was much regard paid to 
them by the State Legislatures. The people 
were so united in the defence of the country, that 
they could have acted cordially together without 
any organized government, as did the people of 
the New Hampshire Grants during their contest 
with New York. 

But after the close of the war, after the exter- 
nal pressure had been removed, the people mani- 
fested a different spirit. They had persuaded 
themselves that they had been cruelly oppressed 
by the tyranny of the British government, and 
that if they could achieve their independence, 
their condition would be entirely changed, that, 
enjoying the largest liberty under their free gov- 



200 MExMOIH OF 

ernments, thej should live in a state of ease and 
happiness, to which they had ever been strangers. 
But during the seven years of war, a great por- 
tion of the people had contracted habits of idleness 
and dissipation, which inevitably lead to poverty 
and distress, under any government. In addition 
to this, to defray the expenses of the war, the 
taxes were necessarily higher than they had ever 
paid while under the British government. 

By this disappointment, the minds of the peo- 
ple were soured, attributing all their distress to 
the new government, and not having obtained a 
clear understanding of the principles on which 
they rested, felt that they had a right to rise in 
opposition to them. And in this State, and some 
others, great numbers were in arms, to overthrow 
the governments which they had instituted. In 
this state of things, the sober and reflecting part 
of community were alarmed, their doubts and 
their fears in relation to the successful operor 
tion of the new governments were revived and in- 
creased, and the following lines from McFingal 
were constantly quoted, as containing a prophecy 
which was speedily to be fulfilled to the let- 
ter : — 



THOMAS CHITTENDEN. 201 

" What wild confusion Lence must ensue, 

Though common danger now cements you ; 

So some wrecked vessel, all in shatters, 

Is held up by surrounding waters, 

But stranded when the pressure ceases 

Falls by its rottenness to pieces, 

And fall it must, if war be ended, 

For you'll ne'er have sense enough to mend it.'' 

But McFingal proved to be a false prophet. 
These msurrections took place in 1T86-7, and the 
State governments had sufficient strength to over- 
come all opposition, and restore peace and good 
order. It is true that the insurrections in the 
State governments created distressing fears that 
they could not be sustained, "without the aid of a 
National Government, which brought the States to 
agree in establishing such a government ; and it is 
also true that the several states could never have 
been in a prosperous condition, so long as they 
continued sovereign and independent states, even 
if they could have lived in peace. But it is not 
true that State governments would have failed by 
reason of the weakness of a government founded 
on the sovereignty of the people, for they were 
sustained under all the adverse circumstances a- 
bove named, and which could never .again occur 
in all their force. The governments were new 
and the principles on which they rested were not 
26 * 



202 MEMOIR OP 

fully understood, nor had their authorltj become 
venerable by time, nor had the people acquired a 
habit of submission to their authority, or a know- 
ledge of their strength. Add to this, the dis- 
tressed condition of the people, rendered more in- 
tolerable by their disappointed expectations, and 
who can fail to perceive and acknowledge the pe- 
culiar strength of a government founded on the 
sovereignty of the people. If there be at any 
time a dissatisfaction among the people with the 
administration, their efforts will be directed not a- 
gainst the authority of the government, but to a 
change in the public functionaries, and if they 
succeed, they are satisfied with a change of meas- 
ures — if they fail, they find a majority of the peo- 
ple against them, and an attempt to obtain redress 
by force would be hopeless. Accordingly, we find 
that, since the insurrections of 1786-7, there has 
beenno insurrection against the State government, 
except in Rhode Island ; but that state did not be- 
long to the family of American states — her gov- 
ernment was of European origin, and the people 
never had an opportunity to institute a govern- 
ment for themselves, for a great portion of them 
were deprived of all their political rights. An 
insurrection in that state was therefore natural^ 



THOMAS CHITTENDEN. 203 

and in the outset justifiable. In all the other 
states, the people have become so habitually sub- 
missive to the government, that they feel little le- 
gal restraint, and would scarcely be sensible that 
they live under any government, were they not 
occasionally called on to vote and pay moderate 
taxes. 

There was one insurrection against the Nation- 
al government, while in its infancy, and before its 
strength was ascertained, which was soon suppress- 
ed. If there be in future any opposition to that 
government, it will be by those states who consid- 
er themselves sovereign and independent, as they 
were under the confederation. If there shall ever 
be a majority of the states maddened into this 
strange delusion, the remarks of McFingal in the 
following lines will be as applicable to the Congress 
under the constitution, as they were to the old 
Congress : — 

* * Nor can you boast, this present hour, 
The shadow or the form of power ; 
For what's your Congress, or its end ? 
A power to advise and recommend, 
To call forth troops, adjust your quotas, 
And yet no soul is bound to notice." 

Both the state and national governments are 
founded on the sovereignty of the people. The 



204 MEMOIR OF 

•■wliole people of the United States, have vested in 
the national government the sole power of regu- 
lating all our national concerns, leaving -with the 
several states the regulation of their domestic 
concerns, and we may then say that it has been 
proved, by an experience of more than half a cen- 
tury, that a civil government, founded on the sov- 
ereignty of the people, is a stronger government, 
and is better calculated to secure the peace and 
promote the happiness of the people, than any 
other civil government which has been established, 
either by compact, by custom, or by force. But 
it must be observed, that the people who estab- 
lished and supported this government were a high- 
ly civihzed, intelligent and Christian people, and 
it must be particularly noticed, that a vast major- 
ity of them were possessed of property, and had 
an interest in its protection. 

But although the experiment does not prove it, 
have we not reason to hope that a free government 
may be established and supported by a people far 
less favored in these respects, than the people of 
the United States ? Our example has made a 
deep impression on the people of Europe, and they 
are struggling to obtain theif freedom. And can 
we believe that it will be so ordered by Providence; 



THOMAS CHITTENDEN. 205 

that this struggle mil only drench Europe in blood, 
and leave the people in slavery ? May we not 
rather believe that the blessings of free govern- 
ment "will not be confined to North America, and 
Western Africa, but that civiHzation and free gov- 
ernment will accompany the Christian religion in 
its extension over the whole earth. 



APPENDIX. 



NO. I. 

Abfe fojoa^e 118.-— In the MS. prepared for the press, thcr 
following Was inserted, between lines 13 and 14 from the top : 
" Gov, Gerry, who was a member of the Convention which 
formed the Constitution of the United States, and was a dis- 
tinguished republican through life, when the Convention 
were endeavoring to fix on the best form of government, re- 
marked — ' Perhaps a limited monarchy would be the best 
form of government, if we had materials for a House of 
Lords.'" — The author inserted this from memory, having 
read it some years since, in a volume containing the jour- 
nals of the Convention which formed the Constitution of the 
United States, with notes of the several debates in the Con- 
vention, taken by Chief Justice Yates, who was one of the 
delegates from the State of New York ; and, not being able 
to find these remarks in any published work, he erased them 
from the MS,, from, a fear that he had stated them incorrect- 
ly. The following has since been foand, in the first volume 
of Elliot's Debates on the Federal Constitution, page 454: 
" Gov. Gerry remarked — perhaps a limited monarchy would 
be the best government, if we could organize it , by creating^ 
a House of Peers, but this cannot be done." 



208 APPENDIX. 



KO, II. 

LETTER FROM GOV. CHITTENDEN TO GEN. 
WASHINGTON, UPON THE COURSE AND POL- 
ICY OF VERMONT IN THE REVOLUTIONARY 
WAR. 

Arlington, Nov. 14, 1781. 
Sir, — The peculiar situation and circumstances with which 
this state, for several year.^ last past, has been attended, indu- 
ces me to address your Excellency, on a subject which near- 
ly concerns her interests, and may have its influence on the 
common cause of the states of America. Placing the high- 
est confidence in your Excellency's patriotism in the cause 
of liberty, and disposition to do right and justice in every 
part of America, (who have by arms supported their rights 
against the lawless power of Great Britain,) I herein trans- 
mit the measures by which this state has conducted her poli- 
cy, for the security of its frontiers ; and, as the design and 
end of it was set on foot, and has ever since been prosecuted 
on an honorable principle, (as the consequences will fully 
evince,) I do it with full confidence that your Excellency will 
not improve it to the disadvantage of this truly patriotic, suf- 
fering state ; although the substance has been communicated 
by Capt. Ezra Hicock, employed by Major General Lincoln^ 
by your Excellency's particular direction, and who arrived 
here with the resolutions of congress of the seventh day of 
August last, which appeared in some measure favorable to 
this state. I then disclosed to him the measures this stats 
had adopted for her security, which I make no doubt has by 
him been delivered your Excellency. And though I do not 
hesitate that you are well satisfied of the real attachment of 
tho government of this state to the common cause, I esteem 
it, nevertheless, ray duty to this state; and the common cause 



APPENDIX. 209 

at large, to lay before your Excellency, in writing, the hereto- 
fore critical situation of this state, and the management of its 
policy, that it may operate in your Excellency's mind, as a 
barrier against clamorous aspersions of its numerous (and, in 
many instances, potent) adversaries. It is the misfortune of 
this state to join on the frontier of Quebec, and the waters of 
the Lake Champlain, which affords an easy passage for the 
enemy to make a descent with a formidable army on its fron- 
tiers, and into the neighborhood of the several states of New 
York, New Hampshire, and Massachusetts, who have sever- 
ally laid claims, in part or in whole, to this state, and who 
have used every art which they could devise to divide her 
citizens, to set congress against her, and, finally, to overturn 
the government, and share its territory among them. The 
repeated applications of this state to the congress of the Uni- 
ted States, to be admitted into the federal union with them, 
upon the liberal principles of paying a just proportion of the 
expenses of the war with Great Britain, have been rejected, 
and resolutions passed, ex parte, tending to create schisms in 
state, and thereby embarrass its efforts in raisins^ men and 
money for the defence of her frontiers, and discountenancing 
the very existence of the state. Every article belonging to' 
the United States, even the pickaxes and spades, has been 
by the commissioners ordered out of this state, at a time 
when she was erecting a line of forts on her frontiers. At the 
same time the state of New York evacuated the post of 
Skeensborough, for the avowed purpose of exposing this state 
to the ravages of the common enemy. 

The British ofl&cers in New York, being acquainted with 
the public disputes between this and the claiming states, and 
and between congress and this state, made overtures to Gen. 
Allen, in a letter, projecting that Vermont should be a colony 

27 



210 APPENDIX. 



(._ 



under the crown of Great Britain , endeavoring, at the same 
time, to draw the people of Vermont into their interest. The 
same day Gen. Allen received this letter, (which was in Aug- 
ust, 1780,) he laid it before me and my council, who, under 
the critical circumstances of the state, advised that no answer, 
either oral or written, should be returned, and that the letter 
be safely deposited till further consideration : to which Gen. 
Allen consented. A few months after, he received a second 
letter from the enemy, and same council advised that Gen* 
Allen should send both letters to congress, (inclosed in a let- 
ter under his signature, )which he did, in hopes that congress 
would admit Vermont into union ; but they had not the de- 
sired eflfect. 

In the fall of the year 1780, the British made a descent up 
the Lake Champlain, and captured the forts George and Ann, 
and appeared in force on the lake. This caused the militia of 
this state, most generally, to go forth to defend it. Thus the 
militia were encamped against the enemy near six weeks 
when Gen. Allen received a flag from them, with an answer 
to my letter, dated the preceeding July, to Gen. Haldemand, 
on the subject of an exchange of prisoners. The flag was 
delivered to Gen. Allen, from the commanding officer of the 
enemy, who was then at Crown Point, with proposals for a 
truce with the state of Vermont, during the negotiating the 
exchange of prisoners. Gen. Allen sent back a flag of his to 
the commanding officer of the British, agreeing to the truce, 
provided he would extend the same to the frontier parts of 
the state of New York, which was complied with, and a truce 
took place, which lasted about three weeks. It was chiefly 
owing to the military prowess of the militia of this state, and 
the including the state of New York in the truce, that Albany 



APPENDIX. 211 

and Schenectady had not fell a sacrifice to the ambition of the 
enemy that campaign. 

Previous to the retreating of the enemy into winter quar- 
ters, Col. Allen and Maj, Fay were commissioned to negoti- 
ate the jjroposed exchange of prisouers. They proceeded so 
far as to treat with the British commissioners on the subject 
of their mission, during which time they were interchangea- 
bly entertained with politics, which they treated in an affable 
manner, as I have been told, but no cartel was settled ; and 
the campaign ended without the effusion of blood. 

The cabinet council, in the course of the succeeding win- 
ter, finding that the enemy in Canada were about seven thous- 
and strong, and that Vermont must needs be their object the 
ensuing campaign, circular letters were therefore sent from 
the supreme executive authority of this state to the claimina: 
states before mentioned, demanding of them to relinquish 
their claims to this state, and inviting them to join in a solid 
union and confederation against the common enemy. Let- 
ters were also sent to your Excellency and to the states of 
Connecticut and Rhode Island ; any [one] of these letters 
stated the extreme circumstances of this state, and implored 
their aid and alliance, giving them withal to understand, that 
it was out of the power of this state to lay in magazines and 
support a body of men sufficient to defend this state against 
the force of the enemy. But to those letters there has been 
no manner of answer returned. 

From all which it appeared that this state was devoted to 
destruction by the sword of the common enemy. It ajipeared 
to be the more unjustifiable that the state of Vermont should 
be thus forsaken, inasmuch as her citizens struck the first of- 
fensive blow against British usurpation by putting the conti- 
nent in possession of Ticonderoga, and more than two hun- 
dred pieces of canaou; with Crown Poiut; 3t. John's, and all 



212 APPENDIX. 

Lake Champlain; their exertions in defeating General Carle- 
ton in his attempt to raise the siege of St. John's ; their assist- 
ing in penetrating Canada ; their valor in the battle of Hub- 
bardton, Bennington, and the landing near Ticonderoga ; as- 
sisting in the capture of General Burgoyne, and by being the 
principal barrier against the power of the enemy in Canada 
ever since. 

That the citizens of this state have, by nature/ an equal 
right to liberty and independency with the citizens of Amer- 
ica in general cannot be disputed, and that they have merited 
it from the United States, by their exertions with them, in 
bringing about the present glorious revolution, is as evident a 
truth as any other which respects the acquired right of any 
community. Generosity, merit and gratitude all conspire in 
vindicating the independence of Vermont ; but notwithstan- 
ding the arguments which have been exhibited in sundrv 
pamphlets in favor of Vcmont, which have been abundantly 
satisfactory to the itnpartial part of mankind, it has been in 
the power of her external enemies to deprive her of union, 
confederation, or any equal advantage in defending themselves 
against the common enemy. The winter being thus spent in 
fruitless attempts to form alliances, and no advantages were 
procured in favor of this state, except that Massachusetts 
withdrew her claim on condition that the United States would 
concede to the independence of Vermont ; but that if they 
•would not, they would have their smack at the south end of 
its teiTitory ; still New York and New Hampshire were stren- 
uously opposed to the independence of Vermont, and every 
stratagem in their power to divide and sub-divide her citizens 
were exerted, imagining that their influence in congress, and 
the certain destruction (as they supposed) of the inhabitants 
of this state by the common enemy, could not fail of finally 
jaccomplishing their wishes. 



APPENDIX. 213 

In this juncture of affnirs, the cabinet of Vermont project- 
ed the extension of their claim of jurisdiction upon the state 
of New Hampshire and New York, as well to quiet their own 
iuternal divisions occasioned by the machinations of those 
two governments, as to make them experience the evils of in- 
testine broils, and strengthen this state against insult. The 
legislature accordingly extended their jurisdiction to the east- 
ward of Connecticut River to the old Mason line, and to the 
westward to Hudson River ; but in the articles of union re- 
ferred the determination of the boundary line of Vermont and 
the respective claiming states, to the final decision of congress, 
or such other tribunal as might be mutually agreed upon by 
the contending governments. These were the principal po- 
litical movements of the last winter. The last campaign o- 
pened with a gloomy aspect to the discerning citizens of this 
state, being destitute of adequate resources, and without any 
alliance, and that from its local situation to Canada, obliged 
to encounter the whole force of that province, or give up its 
claim to independence and run away. 

Vermont being thus drove to desperation by the injustice 
of those who should have been her friends, was obliged to a- 
dopt policy in the room of power ; and, on the first day of 
May last. Colonel Ira Allen was sent to Canada, to further 
negotiate the business of the exchange of prisoners, who a- 
greed on a time and place, and other particulars relating to 
the exchange. While he was transacting that business, he 
was treated with great politeness, and entertained with polit- 
cal matters, which necessity obliged him to humor in that 
easy manner that might serve the interests of this state in its 
extreme critical situation, and that its consequences might 
not be injurious to the United States. The plan succeeded. 
The frontiers of this state were not invaded, andLord George 



214 APPENDIX. 

Germain's letter wrought upon congress and procured that 
from them which the public virtue of this people could not. 

In the month of July last, Major Joseph Fay was sent to 
the British shipping on Lake Champlain, who completed an 
exchange of a number of prisoners who were delivered at 
Skeensborough in September last, at which time and place 
Colonel Ira Allen and Major Fay had a conference with the 
British commissioners, and no damage had as yet occurred 
to this or the United States from this quarter. And in the 
month of October last, the enemy appeared in force at Crown 
Point and Ticonderoga, but manoeuvred out of their expedi- 
tion, and were returned into winter quarters in Canada with 
great safety ; that it might be fulfilled which was spoken by 
the prophet : — " I will put my hook in their nose, and turn 
them back by the way which they came, and they- shall not 
come into this city " (alias Vermont) " saith the Lord." 

It remains that I congratulate your Excellency, and par- 
ticipate with you in the joy of capturing the haughty Corn- 
wallis and his army, and assure your Excellency that there 
are no gentlemen in America who enjoy the glorious victory 
more than the gentlemen of this state, and him who has the 
honor to subscribe himself your Excellency's devoted and 
most obedient, humble servant, 

THOMAS CHITTENDEN. 

His Excellency General WAsmNGTON. 



APPENDIX. 



215 



NO. III. 

REPRESENTATION IN THE SEVERAL STATES. 
Below we give the number of members in each house of 
representatives in the Union, excepting those states which 
have been recently organized, with the number of inhabitanta 
to each representative in the several states, and the constitu- 
tional provisions for reducing the number of representatives 
and equalizing the representation in some of the New Eng- 
land States. 



States. 

Maine, 

New Hampshire, 

Vermont, - 

Massachusetts, 

Rhode Island, - 

Connecticut, - 

New York, 

New Jersey, • 

Pennsylvania, - 

Delaware, 

Maryland, • 

Virginia, 

North Carolina, 

South Carolina, 

Georgia, 

Alabama, 

Mississippi, 

Louisiana, 

Tennessee, 

Kentucky, 

Ohio, - 

Indiana, 

Illinois, 

Missouri, 



No. OF Rbp3. 

151 

274 

240 

300 

69 

220 

128 

42 

100 

21 

76 

134 

114 

134 

100 

60 

100 

50 

40 

100 

72 

36 

36 

100 



INHAB. TO A Rep. 

3,323 

1,037 
1,216 
2,459 
1,577 
1,409 

> 18,976 
8,888 
17,240 
3,718 
6,114 
9,252 
6.609 
4,435 

. 6,914 
9,845 

. 3,756 

7,048 

20,730 

7,798 

■ 21,103 
19,052 

. 13,230 
3,837 



By the foregoing, it appears that in the states South and 
West they have a less number of representatives than in the 
New England States, and that their representation is perfect- 
ly equal. Counties being the only local corporations of any 
importance, they, in the first place, decided what would bo 
the most suitable number of members in a house of repre- 
sentatives, and then apportioned them to the several counties, 
according to their population. And as there has been noth- 



216 APPENDIX. 

ing in the way of increasing the number of their representa- 
tives, by amending their constitutions, we may reasonably 
conclude that they have found by experience that their rep- 
resentatives are sufficiently numerous. 

And it is worthy of remark, that the oldest of these states, 
whose constitutions were formed in the infancy of our insti- 
tutions, have the greatest number of representatives— that 
the emigrants from them, availing themselves of their exper- 
ience in their mother states, greatly reduced the number of 
representatives. 

We have seen that in Vermont we have a greater number 
of representatives than any other state, excepting Massachus- 
etts and New Hampshire, and a greater number than Mass- 
achusetts in proportion to the population ; and that the state 
of New York, with a population greater than that of New 
England, has only 128 representatives, and that the New 
England states have 1,254. 

This increased number of representatives in New England 
has arisen out of our town corporations, which we so highly 
prize. Such are the powers of the town corporations, that 
they lay the most burthensome taxes, and the people feel a 
deeper interest in the proceedings and finances of the town, 
than they do in the proceedings of the legistature and the fi- 
nances of the state. This creates a separate town interest so 
great, that if a town be not represented by one of her own 
inhabitants, the people feel that they have no voice in legis- 
lation. Hence, the necessity of a town representation, from 
which we experience two evils of no small magnitude : a 
house of representatives by far too numerous, and an ine- 
quality in the representation. The following provision in 
the Constitutions of the New England States will show the 
eflforts which have been made by some of them to remove 



APPENDIX. 217 

these evils. lu the first Constitution of Massachusetts, adop- 
ted in 1786, we find the following system of representation : 

" And in order to provide for a representation of the citi- 
zens of this Commonwealth, founded on the principles ofe- 
quality, every corporation containing one hundred and fifty 
rateable polls may elect one represejitative ; every corporate 
town, containing three hundred and seventy-five rateable 
polls, may elect two representatives; every corporate town 
containing six hundred rateable polls, may elect three repre- 
sentatives ; and so proceeding, making two hundred and 
twenty five rateable polls the mean increasing number for 
everyadditional representative. Provided, nevertheless, that 
each town now incorporated, not having one hundred 
and fifty rateable polls, may elect one representative ; but no 
place shall be hereafter incorporated with the privilege of e- 
lecting a representative, unless there be within the same one 
hundred and fifty rateable polls." 

Under the operation of this provision for increasing the 
number of representatives as the population increased, such 
additions were made to thenumber of representatives, that at 
the time when Mauae was separated from Massachusetts, in 
the year 1819, the House consisted of about seven hundred 
members, and after the separation of Maine from Massachus- 
etts, the number of representatives was so increased by an in- 
crease of the population, that great efforts were made to re- 
duce the number, but a long time elapsed before they could 
devise ariy satisfactory mode of doing it. At length they ad- 
opted an amendment of the Constitution, making the follow- 
ing provision for a representation of the people : 

" The rnembers of the house of representatives shall be ap- 
portioned in the following manner : Every town or city con- 
taining twelve hundred inhabitants may elect one representa- 
tive, and twenty-four hundred inhabitants shall he the mean 
increasing number which shall entitle it to an additional rep- 
resentative; Every town containing less than twelve hundred 
inhabitants shall be entitled to elect a representative as many 
times within ten years as the number one hundred and sixty is 
contained in the number of the inhabitants of such town. 
Such towns may also elect one representative for the year in 

28 



218 APPENDIX. 

■which the valuation of estates within the Commonwealth 
shall be settled. Any two or more of ihe several towns may, 
by consent of a majority of the legal voters present, at a le- 
gal meeting in each of said towns, respectively, called for that 
purpose, and held before the first day of August in the year 
1840, and every tenth year thereafter, form themselves into a 
representative district to continue for the term of ten years. 
And such district shall have all the rights in regard to repre- 
sentation which would belong to a town containing the same 
number of inhabitants. The number of inhabitants which 
shall entitle a town to elect one representative, and the mean 
increasing number which shall entitle a town or city to elect 
more than one, and also the number by which the population 
of towns not entitled to elect a representative every year is to 
be divided, shall be increased respectively by one tenth of the 
numbers above mentioned, whenever the population of the 
Commonwealth shall have increased to seven hundred and 
seventy thousand, and for every additional increase of seven- 
ty thousand inhabitants, the same addition of one tenth shall 
be made, respectively, to the numbers above mentioned." 

Under this very artificial system of representation, the av- 
erage number of representatives has been three hundred. 

In the Constitution of Maine, adopted in the year 1819, is 
* the following provision, limiting the number of representa- 
tives and apportioning them to the several counties and 
towns : 

" The house of representatives shall consist of not less than 
one hundrednor more than two hundred members, to be elect- 
ed by the qualified electors for one year from the next day 
preceding the annual meeting of the Legislature." 

Provision is then made for taking a census of the inhabit- 
ants periodically, and following this are these additional pro- 
visions : 

" Thennm"bcr of representatives shall, at the several periods 
of making such enumeration, be fixed and apportioned a- 
mong the several counties, as near as may be, according to 
the number of inhabitants, having regard to the relative in- 
crease of population. The number of representatives shall, 
on said apportionment, be not less than one hundred, nor 



APPENDIX. 219 

more than one hundred and fifty; and whenever the number 
of representatives shall be two hundred, at the next annual 
meetings of election which shall thereafter be had, and at 
every subsequent period often years, the people shall give in 
their votes whether the number of representatives shall be in- 
creased or diminished, and if a majority of voters are in favor 
thereof, ii shall be the duty of the next Legislature thereafter 
to increase or diminish the number by the rule hereinafter 
prescribed : 

Each town having fifteen hundred inhabitants may elect 
one representative ; each town having thirty-seven hundred 
and fifty may elect two ; each town having sixty-seven hun- 
dred and fifty may elect three ; each town having ten thous» 
and five hundred may elect four ; each town having fifteen 
thousand may elect five; each town having twenty thousand 
two hundred and fifty may elect six; each town having twen- 
ty six thousand two hundred and fifty may elect seven ; but 
no town shall ever be entitled to elect more than seven rep- 
resentatives ; and towns and plantations duly organized, not 
having fifteen hundred inhabitants, shall be classed as conve- 
niently as may be into districts, and so as not to divide towns, 
and each such district may elect one representative, and 
when, on this apportionment, the number of representatives 
shall be two hundred, a different apportionment shall take 
place, on the above principles, and in case the fifteen hundred 
shall be too large or too small to apportion all the representa- 
tives to any county, it shall be so increased or diminished as 
to give the number of representatives according to the above 
rule and proportion, and whenever any town or towns, plan- 
tation or plantations, not entitled to' elect a representative, 
shall determine against a classification with any other town 
or plantation, the legislature may, at each apportionment ot 
representatives, on the application of such town or plantation, 
authorize it to elect a representative for such portion of time, 
and such periods, as shall be equal to its portion of represen- 
tation, And the right of representation so established shall 
not be altered, until the next general apportionment." 

Although, by the Constitution, the legislature were author- 
ized to increase the number of representatives to two hun- 
dred, they have added but one representative since the gov- 
ernment was organized, making the present number one hun- 
dred and fifty one. 
When the Colonial government was organized in Connect' 



220 APPENDIX. 

icut, a system of representation was adopted similai to the 
borough representation in England. The towns were con- 
sidered as equal, and all were entitled to the same repre- 
entation, without regard to the size of the town, or the num- 
ber of inhabitants. It was the town corporation that was 
represented. And when a town was divided, and a new 
town incorporated, it was considered that such new town had 
a right to the same representation as the other towns. 

As the towns were originally large, two representatives 
were allowed to each town. This system of representation 
was continued until after the close of the Revolutionary War, 
when an act was passed^ providing that no towns thereafter 
incorporated should be allowed more than one representa- 
tive. In the year 1818, the first Constitution of Connecticut 
was adopted, in which is the following provision relating to 
the representation : 

" The house of representatives shall consist of members re 
siding in the towns from which they are elected. The num- 
ber of representatives from each town shall be the same as at 
present provided and allowed. In case a new town shall 
be hereafter incorporated, such town shall be entitled to one 
representative only, and if such new town shall be made from 
one or more towns, the town or towns from which the same 
shall be made, shall be entitled to the same number of repre- 
sentatives as at present alloAved, unless the number shall be 
reduced by the consent of such town or towns." 

In the Constitution of Rhode Island is the following system 
of representation : 

" The house of representatives shall never exceed seventy 
two members, and shall be constituted on the basis of popula- 
tion, always allowing one representative for a fKiction exceed- 
ing half the rateSjbut each town or city shall always be entitled 
to at least one member, and no town or city shall ever have 
inore than one sixth of the whole number of members to 
which the house is hereby limited. The present ratio shall 
be one representative to every fifteen Imndred and thirty in- 
habitants. The General Assembly may, after any new cen- 
sus taken by authority of the United States, or of the State, 
re-apporlion the representation, by altering the ratio, but no 



APPENDIX. 221 

town or city shall be divided into districts, for the choice of 
representatives. The present number of representatives shall 
be sixtj'-nine, being one representative to every fifteen hun- 
dred and seventy-seven inhabitants." 

In the Constitution of New Haraj^shire, is the following 

provision for a representation of the people : 

" There shall be in the legislature of this state, a represent- 
ation of the people annually, elected and founded on principles 
of equality. And in order that such representation may be 
as equal as circumstances will admit, every town, parish, or 
place entitled to town privileges, having one hundred and 
fifty rateable male polls of twenty-one years «of age and up- 
wards, may elect'one representative ; of four hundred and fifty 
rateable male polls may elect two representatives; and so, 
proceeding in that proportion, making three hundred such rate • 
able polls the mean ensuing number for any additional repre- 
sentative. Such towns, parishes, or places as have less 
than one hundred and fifty rateable polls, shall be classed by 
the General Assembly, for the purpose of choosing a repre- 
sentative, and seasonably notified thereof. And in every class 
formed for the above mentioned purpose, the first annual 
meeting shall be held in the towns, parish, or place wherein 
most of the rateable polls reside, and afterwards in that which 
has the next highest number, and so on annually by rotation 
through the several town, parishes, or places forming the dis- 
trict. Whenever any town, parish, or place entitled to town 
privileges shall not have one hundred and fifty rateable polls, 
and be so situated as to render the classing thereof with any 
other town very inconvenient, the General Assembly may, on 
application of a majority of the voters of such town, parish, 
or place, issue a warrant for their electing and sending a rep- 
resentative to the General Court." 

Under this system, the average number of representatives 
is two hundred and seventy-four, being one representative to 
every one thousand and thirty-seven inhabitants. 

By the Constitution of Yermont, every organized town, 
however small the number of inhabitants^ is allowed one rep- 
resentative ; and no town is entitled to more than one. Un- 
der this system of representation, we have seen, the number 
of representatives is two hundred and forty ; and when all the 
towns in the state shall be organized, the number will be con- 



222 APPENDIX. 

siderably increased. By the small size of our towns, we have 
a greater number of representatives than they have in Con- 
necticut, although two representatives are allowed to the 
greater part of the towns. This is owing to the large size of 
these towns, being originally from ten to twelve miles square. 



THE END. 



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